Bank of America Writ of Certiorari

In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

BANK OF AMERICA, N.A. ANDBANK OF AMERICA CORPORATION,

Petitioners,

v.

DISTRICT OF COLUMBIA, Respondent.

On Petition for Writ of Certiorari to the District of Columbia Court of Appeals

PETITION FOR WRIT OF CERTIORARI

AVA E. LIAS-BOOKER

Counsel of RecordBRIAN A. KAHN

THOMAS M. BESHERE

McGuire Woods LLP7 Saint Paul St., Suite 1000Baltimore, MD 21202(410) [email protected]

Counsel for Petitioners

NO.

i

QUESTIONS PRESENTED

(1) Whether, under the Federal Arbitration Act,9 U.S.C. § 1, et seq., (“FAA”) and the federalsubstantive law of arbitration, a state court may applya state procurement statute after execution of anagreement to arbitrate to hold that governmentofficials with independent contracting authorityconferred by statute lacked authority to agree to anarbitration provision, and to lodge exclusivejurisdiction for the dispute in an administrative orjudicial forum?

(2) Whether, under the FAA and the federalsubstantive law of arbitration, a court must harmonizethe documents and agreements governing a bankaccount relationship to give effect to an arbitrationprovision, when the party resisting arbitrationconcedes that its claims fall outside the jurisdiction ofan administrative dispute resolution process, state lawpermitting a civil action is non-exclusive and non-mandatory, and extinguishing the agreementcontaining the arbitration provision would render theaccount inoperable?

(3) Whether, under the FAA and the federalsubstantive law of arbitration, a court must refer theissue of arbitrability to an arbitrator when the partyresisting arbitration argues that a subsequentagreement superseded a prior agreement containing anarbitration clause, and the arbitration clauseincorporates the American Arbitration Association’sCommercial Arbitration Rules, which give thearbitrator the power to rule on his or her ownjurisdiction?

ii

STATEMENTS PURSUANT TO RULES 14.1(b) AND 29.6

In the District of Columbia Court of Appeals, theAppellants were Bank of America, N.A., and Bank ofAmerica Corporation.1 The Appellee was the Districtof Columbia.

Bank of America, N.A. is 100% owned by BANAHolding Corporation, which is 100% owned by BACNorth America Holding Company, which is 100%owned by NB Holdings Corporation, which is 100%owned by Bank of America Corporation. Of theseentities, only Bank of America Corporation is apublicly-held corporation. Bank of AmericaCorporation has no parent corporations, and nopublicly held corporation owns 10% or more of the stockof Bank of America Corporation.

1 For purposes of this Petition, Bank of America, N.A. and Bankof America Corporation will be referred to collectively as “BOA.”

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

STATEMENTS PURSUANT TO RULES 14.1(b)AND 29.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RELEVANT CONSTITUTIONAL ANDSTATUTORY PROVISIONS . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

I. Factual Background . . . . . . . . . . . . . . . . . . . . 3

A. Harriette Walters’ Fraudulent Scheme . . 3

B. The Agreement Governing the CDARequires Arbitration of Disputes . . . . . . . 4

C. The District’s 2002 Request for Proposaland the 2005 Contract . . . . . . . . . . . . . . . 9

II. Proceedings Below . . . . . . . . . . . . . . . . . . . . 13

A. Proceedings in the Superior Court . . . . . 13

B. The Court of Appeals’ Decision . . . . . . . . 17

REASONS FOR GRANTING THE PETITION . . . 20

iv

I. The Court of Appeals’ Published DecisionEstablishes Precedent That ConflictsWith the FAA, This Court’s Precedents,and The Federal Substantive Law ofArbitration . . . . . . . . . . . . . . . . . . . . . . . . 20

A. The Lower Courts Improperly Elevated aDistrict Law (the PPA) Over the FAA . . 21

B. The Lower Courts Improperly Failed toHarmonize the Governing Documents inAccordance With the FAA and FederalSubstantive Law . . . . . . . . . . . . . . . . . . . 24

II. The Lower Courts Improperly DecidedIssues That Should Have Been Decidedby the Arbitrator . . . . . . . . . . . . . . . . . . . 31

III. This Case Presents an Issue ofImportance With Serious ImplicationsFor Arbitration Agreements In PublicContracts . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

APPENDIX

Appendix A Decision in the District of Columbia Courtof Appeals(November 27, 2013) . . . . . . . . . . App. 1

Appendix B Order Denying Bank of America’sMotion to Dismiss, or in theAlternative, Stay Based on ForumSelection and Arbitration Clauses (December 9, 2009) . . . . . . . . . . App. 66

v

Appendix C Pertinent Constitutional Provisions,Statutes, and Rules

U.S. Const., Art. VI, Clause 2(Supremacy Clause) . . . . . . App. 121

9 U.S.C. § 2 . . . . . . . . . . . . . App. 121

9 U.S.C. § 3 . . . . . . . . . . . . . App. 122

D.C. Code § 1-204.24a . . . . App. 122

D.C. Code § 1-204.24d . . . . App. 124

Former D.C. Code § 2-301.04(repealed April 8, 2011) . . . App. 131


D.C. Code. § 2-381.02 (formerlycodified as D.C. Code § 2-308.14) . . . . . . . . . . . . App. 133

D.C. Code § 2-381.03 (formerlycodified as D.C. Code § 2-308.15) . . . . . . . . . . . . App. 135

D.C. Appropriations Act 2006, 109Pub. L. No. 115, § 132, 119 Stat.2396, 2522 (2005) . . . . . . . . App. 144

American Arbitration Association,Commercial Arbitration Rules,Rule R-7 . . . . . . . . . . . . . . . App. 144

vi

Financial Management andControl Order No. 97-15Chapter 1, Section A.3 . . . . App. 145Chapter 1, Section B.3 . . . . App. 145

Appendix D Selected Pages from 2000 Bank ofAmerica Treasury Services Booklet . . . . . . . . . . . . . . . . . . . App. 147

Appendix E Certified Copy of CorporateResolutions, executed January 6,2000 . . . . . . . . . . . . . . . . . . . . . App. 161

Appendix F Authorization and Agreement forTreasury Services, executedSeptember 25, 2000 . . . . . . . . . App. 162

Appendix G Authorization and Agreement forTreasury Services, executed March 6,2006 . . . . . . . . . . . . . . . . . . . . . App. 170

Appendix H Selected Pages from 2004 Bank ofAmerica Treasury Services Booklet . . . . . . . . . . . . . . . . . . .App. 179

Appendix I Selected pages and portions from theDistrict of Columbia GovernmentContracting Documents related to theControlled Disbursements BankAccount with Bank of America whichinclude portions of: (i) the November13, 2005, District of Columbia Office ofthe Chief Financial OfficerCONTRACT, for Contract No.:CFOPD-05-C-083 with Bank ofAmerica (App. 206-211); (ii) the June2002 Bank of America Response to

vii

Request for Proposal For FinancialServices For OFT ControlledDisbursement Account RFP No.CFOPD-02-R-019, (2002) Contractor’sTechnical Proposal and Cost Proposal)(App. 212-226); (iii) the April 2005Bank of America Revised RFPResponse (2005 Contractor’s TechnicalProposal) (App. 227-239); and (iv) theMay 22, 2002 Solicitation, Offer andAward CFOPD-02-R-019 RFP issuedby the Office of the District ChiefFinancial Officer (District’s 2002Request for Proposals (“RFP”)) (App.240-252) . . . . . . . . . . . . . . . . . . App. 206

Appendix J Bank of America’s Motion to Dismissor, in the Alternative, Stay Based onForum Selection and ArbitrationClauses, filed January 16, 2009 . . . . . . . . . . . . . . . . . . . . .App. 253

Appendix K Selected pages from Bank of America’sNotice of Appeal, filed January 7,2010 . . . . . . . . . . . . . . . . . . . . .App. 257

Appendix L Selected pages from Bank ofAmerica’s brief in the District ofColumbia Court of Appeals, filedNovember 15, 2010 . . . . . . . . .App. 264

viii

Table of Cited AuthoritiesPage(s)

Cases

Agere Sys., Inc. v. Samsung Elecs. Co.,560 F.3d 337 (5th Cir. 2009) . . . . . . . . . . . . . . . 33

AT&T Mobility LLC v. Concepcion,131 S. Ct. 1740 (2011) . . . . . . . . . . . . . . 17, 20, 24

Avue Techs. Corp. v. DCI Group, LLC,No. 06-327 (JDB), 2006 WL 1147622 (D.D.C.Apr. 28, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Bank of America, N.A. v. District of Columbia,80 A.3d 650 (D.C. App. 2013) . . . . . . . . . . . . 4, 17

Bank Julius Baer & Co., Ltd. v. Waxfield Ltd.,424 F.3d 278 (2d Cir. 2005) . . . . . . . . . . . . passim

Buckeye Check Cashing, Inc. v. Cardegna,546 U.S. 440 (2006) . . . . . . . . . . . . . . . . . . passim

Clifton D. Mayhew, Inc. v. Mabro Constr., Inc.,383 F. Supp. 192 (D.D.C. 1974) . . . . . . . . . . . . . 34

Clyde Bergemann, Inc. v. Sullivan, Higgins &Brion, PPE LLC, No. 08-162-KI, 2008 WL 4279632 (D. Or. Sept.18, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Contec Corp. v. Remote Solution Co.,398 F.3d 205 (2d Cir. 2005) . . . . . . . . . . . . . . . . 33

District of Columbia v. Bank of America, N.A., et al., Case No. 2008 CA 007763 B (D.C. Super. Ct.Feb. 19, 2009) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

ix

District of Columbia v. Bailey,171 U.S. 161 (1898) . . . . . . . . . . . . . . . . . . . . . . 36

District of Columbia v. Greene,806 A.2d 216 (D.C. 2002) (per curiam) . . . . 36, 37

Fairman v. District of Columbia,934 A.2d 438 (D.C. 2007) . . . . . . . . . . . . . . . . . . 36

Fallo v. High-Tech Inst.,559 F.3d 874 (8th Cir. 2009) . . . . . . . . . . . . . . . 33

Grynberg v. BP P.L.C.,585 F. Supp. 2d 50 (D.D.C. 2008) . . . . . . . . . . . 33

Holloway v. Jim Walter Homes, Inc.,No. 2:05-CV-516-WKW, 2006 U.S. Dist. LEXIS42274 (M.D. Ala. June 22, 2006) . . . . . . . . . . . . 34

Howard Univ. v. Good Food Servs., Inc.,608 A.2d 116 (D.C. 1992) . . . . . . . . . . . . . . . . . . 32

M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 27

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995) . . . . . . . . . . . . . . . . . . . . . . . 25

Masurovsky v. Green,687 A.2d 198 (D.C. 1996) . . . . . . . . . . . . . . . . . . 32

Moses H. Cone Mem. Hosp. v. Mercury Constr.Corp., 460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20

x

Patten Securities Corp. v. Diamond Greyhound &Genetics,819 F.2d 400 (3d Cir. 1987) abrogated on othergrounds, Gulfstream Aerospace Corp. v.Mayacamas Corp., 485 U.S. 271 (1988) . . . . 27, 28

Perry v. Thomas,482 U.S. 483 (1987) . . . . . . . . . . . . . . . . 20, 21, 22

Personal Sec. & Safety Systems v. Motorola, 297 F.3d 388 (5th Cir. 2002) . . . . . . . . . . . . . . . 26

Preston v. Ferrer,552 U.S. 346 (2008) . . . . . . . . . . . . . . . . . . passim

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) . . . . . . . . . . . . . . . . . . . . . . 21

Rent-A-Center West, Inc. v. Jackson,130 S. Ct. 2772 (2010) . . . . . . . . . . . . . . 17, 32, 34

Ricardi v. Modern Silver Linen Supply Co.,356 N.Y.S.2d 872 (N.Y. App. Div. 1974), aff’d335 N.E.2d 856 (N.Y. 1975) . . . . . . . . . . . . . . . . 34

Southland Corp. v. Keating,465 U.S. 1 (1984) . . . . . . . . . . . . . . . . . . . . passim

UBS Financial Services, Inc. v. Carilion Clinic,706 F.3d 319 (4th Cir. 2013) . . . . . . . . . . . . 28, 29

United States v. Walters,Case No. 1:08-cr-00285 (D.D.C. Sept. 16, 2008) . 3

WorldCrisa Corp. v. Armstrong, 129 F.3d 71 (2d Cir. 1997) . . . . . . . . . . . . . . 26, 27

xi

Constitutional Provisions

United States Constitution, art VI, § 2 . . . . . . . . . . 1

Federal Statutes and Acts

9 U.S.C. § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 2, 14

9 U.S.C. § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

9 U.S.C. § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

9 U.S.C. § 16(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

41 U.S.C. § 7103 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

41 U.S.C. § 7104 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

41 U.S.C. § 7105 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D.C. Appropriations Act 2006, 109 Pub. L. No. 115,§ 132, 119 Stat. 2396, 2252 (2005) . . . . . . . . . 2, 7

District of Columbia Financial Responsibility andManagement Assistance Act of 1995, Pub. L. No.104-8, § 302(a), 109 Stat. 97, 142-47 (1995) . . . . 7

State Statutes and Acts

Alaska Stat. § 36.30.620 . . . . . . . . . . . . . . . . . . . . . 35

Alaska Stat. § 36.30.685 . . . . . . . . . . . . . . . . . . . . . 35

Ariz. Rev. Stat. §§ 41-2611 . . . . . . . . . . . . . . . . . . . 35

Ariz. Rev. Stat. § 41-2614 . . . . . . . . . . . . . . . . . . . . 35

Ark. Code Ann. § 19-11-246 . . . . . . . . . . . . . . . . . . 35

D.C. Code § 16-4401(8) . . . . . . . . . . . . . . . . . . . . . . 36

xii

D.C. Code § 1-204.24a . . . . . . . . . . . . . . . . . . . . . . . . 1

D.C. Code § 1-204.24d . . . . . . . . . . . . . . . . . . . . . . . . 1

D.C. Code § 2-301.04 . . . . . . . . . . . . . . . . . . . . . . . . . 1

D.C. Code § 2-308.03 . . . . . . . . . . . . . . . . . . . . . . . . . 1

D.C. Code § 2-308.14 . . . . . . . . . . . . . . . . 1, 13, 16, 18

D.C. Code § 2-308.15 . . . . . . . . . . . . . . . . . . . . . . 1, 16

D.C. Code § 2-381.02 . . . . . . . . . . . . . . . . . . . . . . 1, 16

D.C. Code § 2-381.03 . . . . . . . . . . . . . . . . . . . . . . 1, 16

D.C. Code §§ 28:3-404 . . . . . . . . . . . . . . . . . . . . . . . 13

D.C. Code §§ 28:3-405 . . . . . . . . . . . . . . . . . . . . . . . 13

D.C. Code §§ 47-355.01 et seq. . . . . . . . . . . . . . . . . 14

Hawaii Rev. Stat. § 103D-703 . . . . . . . . . . . . . . . . . 35

30 Ill. Comp. Stat 500/20-75 . . . . . . . . . . . . . . . . . . 35

Kentucky Rev. Stat. § 45A.235 . . . . . . . . . . . . . . . . 35



La. Rev. Stat. § 39:1673 . . . . . . . . . . . . . . . . . . . . . 35

La. Rev. Stat. § 39:1685 . . . . . . . . . . . . . . . . . . . . . 35

La. Rev. Stat. § 39:1691 . . . . . . . . . . . . . . . . . . . . . 35

Md. Code Ann., State Fin. & Proc. § 15-211 . . . . . 35

Mont. Code Ann. § 18-1-401 . . . . . . . . . . . . . . . . . . 35

62 Pa. Cons. Stat. § 1724 . . . . . . . . . . . . . . . . . . . . 35

xiii

62 Pa. Cons. Stat. § 1725 . . . . . . . . . . . . . . . . . . . . 35

Procurement Reform Amendment Act of 1996, 1996D.C. Stat. 259, § 101(b) (1997) . . . . . . . . . . . . . . 7

R.I. Gen. Laws § 37-2-46 . . . . . . . . . . . . . . . . . . . . . 35

R.I. Gen. Laws § 37-2-49 . . . . . . . . . . . . . . . . . . . . . 35

S.C. Code Ann. § 11-35-4230 . . . . . . . . . . . . . . . . . . 35

S.C. Code Ann. § 11-35-4320 . . . . . . . . . . . . . . . . . . 35

S.C. Code Ann. § 11-35-4410 . . . . . . . . . . . . . . . . . . 35

Tex. Gov’t Code § 2260.051 . . . . . . . . . . . . . . . . . . . 35

Tex. Gov’t Code § 2260.052 . . . . . . . . . . . . . . . . . . . 35

Tex. Gov’t Code § 2260.102 . . . . . . . . . . . . . . . . . . . 35

Va. Code Ann. § 2.2-4363 . . . . . . . . . . . . . . . . . . . . 35

Va. Code Ann. § 2.2-4365 . . . . . . . . . . . . . . . . . . . . 35

Other Authorities

Financial Management and Control Order No. 97-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

American Arbitration Association, CommercialArbitration Rule R-7 . . . . . . . . . . . . . . . . . . . 5, 33

1

OPINIONS BELOW

The opinion of the District of Columbia Court ofAppeals (“Court of Appeals”) is reported at 80 A.3d 650(D.C. 2013). App. 1-65. The decision of the SuperiorCourt of the District of Columbia (“Superior Court”) isunreported. App. 66-120.

JURISDICTION

The Superior Court issued its decision denyingBOA’s Motion to Dismiss or, in the Alternative, StayBased on Forum Selection and Arbitration Clauses,which the court treated as a motion to compelarbitration under the FAA, on December 9, 2009. App.66-120. That decision was immediately appealableunder 9 U.S.C. § 16(a)(1)(A). The Court of Appealsaffirmed the Superior Court’s decision on November 27,2013. App. 1-65. This Court has jurisdiction under 28U.S.C. § 1257(a) and (b).

RELEVANT CONSTITUTIONAL ANDSTATUTORY PROVISIONS

The pertinent provisions of the United StatesConstitution (the Supremacy Clause, art. VI, § 2) andthe Federal Arbitration Act (9 U.S.C. §§ 2 and 3) arereprinted in the appendix at App. 121-122. Otherstatutes cited herein and re-printed in the appendixare:

D.C. Code §§ 1-204.24a and 1-204.24d;

D.C. Code §§ 2-381.02 and 2-381.03 (formerlyD.C. Code §§ 2-308.14 and 2-308.15);

Former D.C. Code §§ 2-301.04 and 2-308.03;

2

and

D.C. Appropriations Act 2006, 109 Pub. L. No.115, § 132, 119 Stat. 2396, 2252 (2005).

App. 122-144.

STATEMENT OF THE CASE

This case arises from the refusal of the District ofColumbia Superior Court and Court of Appeals toenforce an arbitration provision in bank accountdocuments that District of Columbia officials, who arevested by statute with independent contractingauthority, signed and agreed to twice. Despite theDistrict’s agreement on two separate occasions toaccount documents containing the arbitrationprovision, the Court of Appeals improperly invoked aDistrict procurement statute, the ProcurementPractices Act (“PPA”), and “contract integration”principles to invalidate the District’s agreement toarbitrate.

The Court of Appeals’ decision directly conflicts withthe Federal Arbitration Act, 9 U.S.C. 1, et seq. (“FAA”),and the federal substantive law of arbitration that hasdeveloped over the last 50 years. First, itimpermissibly elevates a District procurement statuteover the FAA to lodge exclusive jurisdiction for thedispute in an administrative or judicial forum. Second,it impermissibly refuses to harmonize the governingaccount documents to give effect to the arbitrationprovision when harmonization is not only possible, butnecessary to avoid extinguishing the basic accountdocuments upon which the account’s operationdepends. Third, it impermissibly decides issues thatshould be decided by an arbitrator, as the District

3

challenged the agreements containing the arbitrationprovisions in their entirety, and the arbitrationprovisions specifically reserve questions of arbitrabilityto the arbitrator.

The Court of Appeals’ published decision not onlydiverges from the well-established federal substantivelaw of arbitration; it also marks a significant step ineroding the enforceability of arbitration provisions inpublic contracts. Given its departure from establishedlaw and the implications of its decision, this Court’sreview is warranted.

I. Factual Background

A. Harriette Walters’ Fraudulent Scheme

This case arises from the fraudulent scheme ofHarriette Walters (“Walters”), a former manager in theDistrict’s Office of Tax and Revenue (“OTR”).

For nearly 20 years, beginning in the late 1980s,Walters orchestrated and carried out a criminal schemein which she caused the OTR to issue fraudulent taxrefund checks to herself and various friends, familymembers and companies (both real and fictitious) on anaccount that the District maintained with BOA, knownas a Controlled Disbursement Account (“CDA”). App.3. In 2000, Walters allegedly involved Walter Jones, anassistant branch manager for BOA, to help facilitatenegotiation of some fraudulent checks.2 Id.

2 Walters did not meet Jones until 1994 or 1995, and his allegedinvolvement did not begin until around 2000. Statement of theOffenses at 4, 12-14, 43, United States v. Walters, Case No. 1:08-cr-00285 (D.D.C. Sept. 16, 2008) (“Statement of the Offenses”).

4

Walters’ scheme was discovered in 2007. Over itscourse, Walters managed to steal over $48 million fromthe District.3 She is now serving a 17½-year prisonsentence. Through its Complaint in this action, theDistrict seeks to hold BOA responsible for the damagecaused by Walters’ scheme.

B. The Agreement Governing the CDARequires Arbitration of Disputes

The CDA is a specialized type of business account. Each day, it allows the District to transfer the exactamount of funds needed to cover checks presented onthat day immediately before payment is made on thosechecks. App. 6. This allows the District to invest thefunds elsewhere for a higher rate of return until theyare needed to cover checks. Id. This service alsoallows the District to review and approve or stoppayment on checks as they are presented. App. 76. Each year, hundreds of millions of dollars flowedthrough the account. Id.

The account is governed by certain bank documentsand agreements, one of which is BOA’s TreasuryServices Terms and Conditions Booklet (“TreasuryBooklet”). The Treasury Booklet is integral to themaintenance and operation of a CDA. The TreasuryBooklet (and other bank documents incorporated by it)

3 Statement of the Offenses at 14. A 2008 investigative reportprepared for the District Council concluded that the OTR shouldhave caught Walters’ scheme, but a failure of controls,dysfunctional work environment, and lack of oversight within theDistrict allowed it to continue. (J.A. 161-170, Bank of America,N.A. v. District of Columbia, 80 A.3d 650 (D.C. App. 2013) (No. 10-CV-78).)

5

sets forth the services provided in CDAs and therelated terms and conditions. App. 147-160. Whenopening a CDA, a customer executes an Authorizationand Agreement for Treasury Services (“Authorization”),which incorporates the Treasury Booklet. App. 162-169.

The Treasury Booklet contains an arbitrationprovision stating:

Any dispute or controversy concerning your useof Services described in this Booklet will bedecided by arbitration in the United States ofAmerica . . . in accordance with the UnitedStates Arbitration Act (Title 9, U.S. Code) underthe Commercial Arbitration Rules of theAmerican Arbitration Association.

App. 8, 158. Under Rule R-7 of the CommercialArbitration Rules of the American ArbitrationAssociation (“AAA”), questions of arbitrability aredecided by the arbitrator.

(a) The arbitrator shall have the power to ruleon his or her own jurisdiction, including anyobjections with respect to the existence, scope orvalidity of the arbitration agreement.

(b) The arbitrator shall have the power todetermine the existence or validity of a contractof which an arbitration clause forms a part. Such an arbitration clause shall be treated as anagreement independent of the other terms of thecontract. A decision by the arbitrator that thecontract is null and void shall not for that reasonalone render invalid the arbitration clause.

6

App. 144 (emphasis added).

The Treasury Booklet further provides that, on eachday that BOA provides any treasury service to anaccount holder, the account holder represents andwarrants that:

• Its agreement to each provision in the TreasuryBooklet is a “duly authorized, legal, valid,binding and enforceable obligation”;

• It has obtained “all approvals and authorizationsrequired to permit the delivery of the Agreementand Authorization form and any other necessarydocumentation, and the performance andconsummation by [it] of the transactionscompleted under each service”; and

• Its performance of its obligations “will notviolate any law, regulation, judgment, decree ororder applicable to [it].”

App. 157.

Like any CDA holder, the District executedstandard bank documents in which it accepted andagreed to be bound by the Treasury Booklet. In fact,the District executed these documents on twooccasions, in 2000 and 2006.

The first occurred after the District’s ChiefFinancial Officer (“CFO”) delegated and authorized theDistrict’s Deputy CFO/Treasurer, and its AssociateTreasurer, to enter into banking account and treasuryservices agreements. At all relevant times, theDistrict’s Office of the Chief Financial Officer (“OCFO”)was vested by statute with independent contracting

7

authority and was exempted from the PPA.4 OnJanuary 6, 2000, the CFO executed a “Certified Copy ofCorporate Resolutions – Opening and MaintainingDeposit Accounts and Services” (“CorporateResolution”), which authorized District officials holdingthe titles of CFO, Deputy CFO/Treasurer, andAssociate Treasurer “to execute and sign anyapplication, deposit agreement, signature card and anyother documentation required by the Bank to open saidaccounts.” App. 6-7, 161. The Corporate Resolutionalso authorized those officials to:

enter any agreements with [BOA] for theprovision by the Bank of various TreasuryManagement services to [the District] as suchofficer may determine, in his or her solediscretion, and to sign any and all documentsand take all actions required by the Bankrelative to such Treasury Management services. . . and that any such Treasury Managementagreement(s) shall remain in full force and effect

4 As early as 1995, the OCFO was statutorily vested withindependent contracting authority that could be delegated tomembers of the CFO’s staff. See D.C. Financial Responsibility andManagement Assistance Act of 1995, Pub. L. No. 104-8, § 302(a),109 Stat. 97, 142-47 (1995) (codified as amended at D.C. Code §§1-204.24a and 1-204.24d); Procurement Reform Amendment Act of1996, 1996 D.C. Stat. 259, § 101(b) (1997) (codified as amended atD.C. Code § 2-301.04); Financial Management and Control OrderNo. 97-15. See App. 122-131, 145. The 2006 District of ColumbiaAppropriations Act confirmed the OCFO’s independent contractingauthority, as it exempted the OCFO from the PPA retroactively to1997. See D.C. Appropriations Act 2006, 109 Pub. L. No. 115, §132, 119 Stat. 2396, 2522 (2005). See App. 144.

8

until written notice to terminate given inaccordance with the terms of any suchagreement shall have been received by [BOA] .. . .

Id. (emphasis added).

Then, on September 25, 2000, the District enteredinto a treasury services agreement with BOA, whichpermitted the maintenance and operation of the CDA. The District’s Acting Deputy CFO/Treasurer and itsInterim Associate Treasurer and Banking Managerexecuted an Authorization and Agreement for TreasuryServices (“2000 Authorization”), in which they agreed,on the District’s behalf, to be bound by the TreasuryBooklet.5 App. 8, 162-165. The 2000 Authorizationfurther states that the Treasury Booklet “constitutes aseparate agreement between the Client and each Bank,now or in the future, when the Bank provides anyservice.” App. 81-82, 162. On that same day, theDistrict’s Acting Deputy CFO/Treasurer also signed a“Treasury Services Delegation of Authority” form,which confirmed the authority of certain Districtofficials to sign authorizations and agreements relatingto the CDA and its accompanying services.6 App. 167-169.

The second occasion on which the District agreed tothe Treasury Booklet occurred in 2006, after the

5 The Corporate Resolution authorized both officials to signtreasury service agreements. App. 7-8, 77-78, 161.

6 The delegation applied to any District officials holding the titleof Deputy CFO and Treasurer, Associate Treasurer, or BankingRelations Manager.

9

parties executed a formal government contract in 2005(discussed below) that referenced and incorporated theTreasury Booklet and related account userdocumentation. On March 6, 2006, the District’sDeputy CFO/Treasurer signed another treasuryservices Authorization accepting and agreeing to bebound by the Treasury Booklet (“2006 Authorization”). App. 11, 170-173. That agreement put in place the2004 version of the Treasury Booklet, which containedthe same arbitration clause, and the samerepresentations and warranties, as the prior version. App. 199-201.

Throughout the relevant time period, the CorporateResolution was never revoked or terminated, and theDistrict never provided any written notice oftermination of its agreements to be bound by theTreasury Booklet. Pursuant to the Treasury Booklet’srepresentations and warranties, on each day that theDistrict used any CDA service (which was virtuallyevery day), it reaffirmed its acceptance of the TreasuryBooklet. App. 157-158, 199-200.

C. The District’s 2002 Request for Proposaland the 2005 Contract

Although BOA provided CDA services to theDistrict since at least 2000, on May 22, 2002, theDistrict issued a formal Request for Proposals (“RFP”)Number CFOPD-02-R-019 to BOA for maintenance ofthe CDA. App. 9, 240. On June 24, 2002, EdmundBianchi, a Senior Vice President and Senior ClientManager for BOA, signed and submitted BOA’sResponse to Request For Proposal For FinancialServices For OFT Controlled Disbursement AccountRFP No. CFOPD-02-R-019, which was referred to as

10

the 2002 Contractor’s Technical Proposal and CostProposal. App. 84, 212-217.

The District did not complete the RFP process until2005. Due to the delay, the District issued an amendedRequest for Proposal (“2005 RFP”) in March 2005. App. 10. Throughout this time, the District continuedto use the CDA. On April 25, 2005, BOA submitted arevised RFP Response, updated consistent with the2005 RFP, and a best and final offer. The revised RFPresponse is referred to as the Contractor’s 2005Technical Proposal and Cost Proposal. App. 10-11, 87-88, 227-230.

On November 13, 2005, BOA and the District signeda formal government contract that continued the CDAservices (the “2005 Contract”). App. 10-11, 206-211. The contract document contained a table of contentsreflecting that it consisted of five sections or articles. App. 206-207. Article IV, entitled “IncorporatedDocuments by Order of Precedence,” provided that theContractor’s Technical Proposal and Cost Proposalwere second in the order of precedence, and theDistrict’s RFP was last. App. 211. Article V provided:“This contract, including specifically incorporateddocuments, constitutes the total and entire agreementof the parties. All previous discussions, writings andagreements are merged herein.” App. 11, 211.

The 2002 and 2005 Contractor Technical Proposalsin BOA’s RFP responses included an“Agreements/Documentation” section specificallyreferencing the bank agreements and userdocumentation that governed the CDA, including inrelevant part:

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Terms & Conditions for Treasury Services

Signature Card & Resolution

Wire Transfer Forms

Automated Investment Services Agreement

App. 216, 229. Thus, in accordance with Article IV,these were “Incorporated Documents.” Moreover, thedocuments in that section included a blank copy of theAuthorization and Agreement for Treasury Servicesform, through which the District had agreed (and inMarch of 2006, would agree again) to the TreasuryBooklet. App. 219-221, 232-234. Mr. Bianchi also sentcopies of the Treasury Booklet with the 2002 and 2005Contractor Technical Proposals.7

The 2002 RFP, last in the order of precedence,included “Contract Clauses” and “Disputes” provisionsthat incorporated certain laws and regulations byreference, including the PPA. App. 245-246, 249. Theformulaic reference to the PPA contained no languagesuggesting any intention to proscribe the OCFO’sindependent contracting authority and exemption fromthe PPA. Likewise, the “Disputes” provision outlinedthe first step of the PPA’s dispute resolution procedureand stated that disputes “aris[ing] under or relat[ing]

7 The Court of Appeals stated that the Superior Court found thatthe Treasury Booklet was not included with BOA’s 2002 or 2005RFP responses. App. 52. This misstates the Superior Court’sfindings. In fact, the Superior Court credited Mr. Bianchi’stestimony that he submitted a copy of the Treasury Booklet in aseparate envelope that he attached to the envelope containing theContractor Technical Proposal with both the 2002 and 2005 RFPResponses. App. 85.

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to the contract” shall be submitted to a contractingofficer for a written decision, but said nothing about theresolution of claims not arising under the contract.8 App. 249. Moreover, the PPA, which is a jurisdictionalstatute, does not limit the authority of District officialsto agree to arbitrate disputes. Neither the PPA’slanguage nor the District’s RFP contain any provisionindicating any intent to supersede or displace prior orcontemporaneously existing arbitration agreements –indeed, there is no mention of arbitration in either. Significantly, nothing in the RFP purported to revokeany signature cards or the District’s CorporateResolution. This is consistent with the nature of thedocuments incorporated by reference into the 2005Contract.

As discussed above, on March 6, 2006 (four monthsafter the 2005 Contract was signed), the District’sDeputy CFO/Treasurer signed the 2006 Authorizationagreeing to be bound by the Treasury Booklet. App. 11,170-173. His actions were consistent with the mannerin which the CDA had been operated since itsinception.

8 The District’s RFP also had a “Contract Administration Data”section, which stated that “[t]he Contracting Officer is the onlyofficial authorized to contractually bind the District.” App 9, 244. As discussed above, however, the OCFO had independentcontracting authority that could be delegated to members of theCFO’s staff. See supra n.4.

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II. Proceedings Below

A. Proceedings in the Superior Court

The District filed a Complaint against BOA andcertain individual defendants in the District ofColumbia Superior Court on October 31, 2008, followedby a First Amended Complaint on December 17, 2008. The District claimed no breach of contract, but assertedstatutory and common-law tort claims:

Counts One and Two – Violations of the UniformCommercial Code, D.C. Code §§ 28:3-404 and405

Count Three – Negligence

Count Four – Fraud

Count Five – Breach of Fiduciary Duty

Count Six – Conversion

Count Seven – Violation of the D.C. FalseClaims Act, D.C. Code § 2-308.14

Count Eight – Failure to Adequately Hire, Trainor Supervise

App. 3, 69-70.

These claims were based on allegations that BOAnegligently failed to detect Harriette Walters’ schemeand negotiated fraudulent checks that Walters causedOTR to issue; that a BOA employee (Walter Jones)assisted the scheme; and that BOA was responsible forthe District’s damages. Id. The District alleged that itlost over $39 million and sought treble damages under

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the D.C. False Claims Act, for a total demand of over$117 million. App. 3-4.

Pursuant to the Federal Arbitration Act, 9 U.S.C. §3, BOA moved on January 16, 2009, to dismiss theaction or, alternatively, for a stay pending arbitration.9 App. 253-256. Multiple rounds of briefing followed, andthe Superior Court conducted an evidentiary hearingbetween September 11 and 25, 2009.10

9 BOA also sought enforcement of a forum selection clause in itsDeposit Agreement, which required the dispute to be resolved inNorth Carolina. The forum selection clause is not at issue in thisPetition.

10 The extensive briefing and evidentiary hearing was at leastpartially due to the District’s shifting arguments in opposition toBOA’s motion. For example, the District initially argued that itsentire contract with BOA was “void ab initio” under the District’sAnti-Deficiency Act, D.C. Code §§ 47-355.01 et seq. See Plaintiff’sMem. of Pts. and Auth. in Opp. to Bank of America’s Mot. to Dism.or, in the Alt., Stay Based on Forum Selection and ArbitrationClauses at 7-15, District of Columbia v. Bank of America, N.A., etal., Case No. 2008 CA 007763 B (D.C. Super. Ct. Feb. 19, 2009). Under this Court’s precedents, the District’s argument that thecontract was void ab initio must go to the arbitrator. See BuckeyeCheck Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-449 (2006). Upon realizing this, the District sought other strategies forcircumventing the arbitration provision. The Superior Courtultimately took the unusual step of requiring the District to file aseparate pleading before the evidentiary hearing to clarify andexplain its legal position. See Praecipe in Response to the Court’sRequest that the District Clarify its Legal Position, District ofColumbia v. Bank of America, N.A., et al., Case No. 2008 CA007763 B (D.C. Super. Ct. Sept. 15, 2009). The court also allowedthe District to present oral and parol evidence at odds with thewritten agreements and documents executed by the parties. SeeD.C. Super. Ct. Hr’g Tr., 945:2-946:11, 947:24-950:23, 953:11-

15

The Superior Court treated BOA’s motion as amotion to compel arbitration under the FAA. App. 4,66-67. BOA maintained that under the FAA, theDistrict was bound by the Treasury Booklet’sarbitration clause, and the District’s claims must bearbitrated.11

On December 9, 2009, the Superior Court deniedBOA’s motion. The Superior Court found that theDistrict’s claims fell within the scope of the TreasuryBooklet’s arbitration provision. App. 12, 68. TheSuperior Court further held that the 2005 Contract didnot invalidate the documents signed by Districtofficials to open and maintain the CDA. App. 101. However, rather than harmonize the governingdocuments, the Superior Court cited principles of“contract integration” and held that the 2005 Contractsuperseded any previously-agreed dispute resolutionprovisions, and any provisions that would allowDistrict officials to agree to arbitration. App. 95-102. The Superior Court also held that after the executionof the 2005 Contract, only the designated contractingofficer12 could bind the District to any modifications, so

958:20, 1186:3-1187:18, 1189:15-1190:13, 1360:2-19, 1365:16-1366:17

11 See Mem. in Supp. of Bank of America’s Mot. to Dism. or, in theAlt., Stay Based on Forum Selection and Arbitration Clauses at 1-2, 10, 22-31, District of Columbia v. Bank of America, N.A., et al.,Case No. 2008 CA 007763 B (D.C. Super. Ct. Jan. 16, 2009).

12 The “Contracting Officer” provision is in the “ContractAdministration Data” section of the District’s RFP. App. 243-245. In this case, the individual so designated did not know what a CDAwas and never interacted with anyone at BOA during its operation.

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the 2006 Authorization (and thus, any documentsagreed to thereunder, including the 2004 TreasuryBooklet) was invalid. App. 99, 101-102.

The Superior Court further held that the PPAprecluded arbitration because it provided that claimsby the District “arising under or relating to a contractshall be decided by the contracting officer,” and thatthe District’s Contract Appeals Board (“CAB”) wouldhear appeals from a contracting officer’s decision. App. 106-107. This, according to the Superior Court,withheld authority from OCFO officials to enterarbitration agreements in the first place. App. 106-112. The Superior Court further held that the OCFOwas not exempt from the PPA. App. 110-111.

The Superior Court then dismissed Counts Onethrough Six and Eight, holding that under the PPA,those claims fell within the jurisdiction of thecontracting officer and the CAB. App. 4-5, 115. TheSuperior Court retained jurisdiction over Count Seven,which asserted a violation of the D.C. False ClaimsAct.13 Id. The Superior Court noted that “themechanism for resolving disputes under the FalseClaims Act, which is part of the PPA, is for theAttorney General to bring an action in Superior Court.” App. 104-105. In so doing, the Superior Court citedformer D.C. Code § 2-308.15(a) (now D.C. Code § 2-381.03(a)), which stated that the District “may bring an

See D.C. Super. Ct. Hr’g Tr., 1670:7-1671:17.

13 At the time, the relevant provisions of the False Claims Actwere codified at D.C. Code §§ 2-308.14 and 2-308.15. They are nowcodified at D.C. Code §§ 2-381.02 and 2-381.03. App. 133-143.

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action . . . in the Superior Court of the District ofColumbia” for specified fraudulent acts. App. 104-105,135 (emphasis added). The Superior Court thus heldthat actions under the False Claims Act were solelywithin the Superior Court’s jurisdiction and could notbe arbitrated. App. 4-5, 115.

B. The Court of Appeals’ Decision

BOA noted a timely appeal to the Court of Appealson January 7, 2010. App. 257-263. In its briefs, BOAagain argued that, under the FAA, the District’s claimsmust be arbitrated pursuant to the Treasury Booklet’sarbitration provision, the FAA superseded any Districtlaw purporting to require a different forum, and theDistrict’s challenges to the underlying agreements werefor the arbitrator to decide.14 App. 264-266.

On November 27, 2013, the Court of Appealsaffirmed the Superior Court’s decision. Although theTreasury Booklet’s arbitration provision incorporatedthe AAA’s Commercial Arbitration Rules, whichrequired issues of arbitrability to be decided by thearbitrator (App. 144), the Court of Appeals held thatthe trial court was the proper forum to determinearbitrability. App. 21-30.

14 Among other cases, BOA cited and relied on this Court’sdecisions in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.440 (2006), Preston v. Ferrer, 552 U.S. 346 (2008), Rent-A-CenterWest, Inc. v. Jackson, 130 S. Ct. 2772 (2010), and AT&T MobilityLLC v. Concepcion, 131 S. Ct. 1740 (2011). See Brief of Appellantat 15-40, Bank of America, N.A., et al. v. District of Columbia, 80A.3d 650 (D.C. Ct. App. 2013) (No. 10-CV-78).

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Like the Superior Court, the Court of Appeals heldthat the PPA precluded arbitration because it providedthat claims by the District “arising under or relating toa contract” would be heard by the contracting officer,and the CAB would hear appeals from a contractingofficer’s decision. App. 34-37. The Court of Appealsopined that these PPA provisions effectively withheldauthority from District officials to agree to arbitratecontract claims, and that the OCFO was not exemptfrom the PPA. App. 34-42.

The Court of Appeals further held that other PPAprovisions precluded OCFO officials from agreeing toarbitrate fraud claims. App. 43-46. It first noted that,under the PPA, fraud claims fell outside thejurisdiction of the contracting officer and CAB, andcontracting officers were not permitted to “settle,compromise, pay or otherwise adjust any claiminvolving fraud.” App. 43-45, 53. The Court of Appealsthen cited the False Claims Act, former D.C. Code § 2-308.14(a), and echoed the Superior Court’s conclusionthat fraud claims by the District may only be heard incourt. App. 53, 61.

The Court of Appeals also concluded that the 2005Contract superseded prior agreements and withheldfrom OCFO officials the authority to bind the Districtto any other agreements going forward. App. 50-57. Like the Superior Court, rather than harmonizing thedocuments governing the account, the Court of Appealscited “contract integration” principles and held that the2005 Contract was “completely integrated” as todispute resolution and modification authority. Id. TheCourt of Appeals further stated that, even if the 2005Contract was only “partially integrated,” the Treasury

19

Booklet’s arbitration provision could not be “reconciledor harmonized” with the 2005 Contract. App. 55-57. Finally, the Court of Appeals held that the 2005Contract also extinguished the District’s subsequentexecution of a treasury services Authorization in Marchof 2006, in which it again agreed to be bound by theTreasury Booklet. App. 57-60

Notably, the District conceded that the SuperiorCourt had erred in holding that the District’s claims“related to the contract.” App. 60. Thus, the Districtagreed with BOA that, even if the PPA applied, itsclaims would not fall within the jurisdiction of thecontracting officer and CAB. Id. Despite thisconcession, the Court of Appeals stated that it was“unclear” whether the District’s claims “arise under theparties’ contract,” and further inquiry was necessary tomake that determination. App. 62-63.

Thus, to the extent that the Superior Court haddismissed the District’s claims in favor of jurisdictionbefore the contracting officer and CAB, the Court ofAppeals vacated the dismissal and remanded to theSuperior Court to determine whether the claims shouldbe heard by the contracting officer and CAB, or theSuperior Court. App. 65. In all other respects, theCourt of Appeals upheld the Superior Court’sconclusion that the District’s claims were not subject toarbitration, and affirmed the Superior Court’s denial ofBOA’s motion.

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REASONS FOR GRANTING THE PETITION

I. The Court of Appeals’ Published DecisionEstablishes Precedent That Conflicts With theFAA, This Court’s Precedents, and TheFederal Substantive Law of Arbitration.

For decades, this Court has emphasized thatSection 2 of the FAA “declared a national policyfavoring arbitration and withdrew the power of statesto require a judicial forum for the resolutions of claims”that the parties agreed to arbitrate. Southland Corp.v. Keating, 465 U.S. 1, 10 (1984). See also AT&TMobility LLC v. Concepcion, 131 S. Ct. 1740, 1749(2011) (“[O]ur cases place it beyond dispute that theFAA was designed to promote arbitration”). Indeed,“Section 2 is a congressional declaration of a liberalfederal policy favoring arbitration agreements,notwithstanding any state substantive or proceduralpolicies to the contrary.” Moses H. Cone Mem. Hosp. v.Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

Consistent with this national policy, the Court hasproduced a body of precedent under which the FAA“supplies not simply a procedural framework applicablein federal courts; it also calls for the application, instate as well as federal courts, of federal substantivelaw regarding arbitration.” Preston v. Ferrer, 552 U.S.346, 349 (2008). This well-established federalsubstantive law displaces state laws and rejectsapplication of state law that impermissibly interfereswith the enforcement of arbitration agreements. See,e.g., Concepcion, 131 S. Ct. at 1748-50 (abrogating statedecisional law that precluded enforcement of classarbitration waiver provisions); Perry v. Thomas, 482U.S. 483, 489-90, 492 n. 9 (1987) (noting that § 2

21

forecloses “state legislative attempts to undercut theenforceability of arbitration agreements,” as well asany “state-law principle that takes its meaningprecisely from the fact that a contract to arbitrate is atissue[.]”) (citing Southland, 465 U.S. at 16-17, andPrima Paint Corp. v. Flood & Conklin Mfg. Co., 388U.S. 395, 404 (1967)). Finally, the national policy andthe federal substantive law favoring the enforceabilityof arbitration agreements apply regardless of whetherthe challenge to the contract or arbitration clause is ina state or federal forum. Preston, 552 U.S. at 353(citing Southland, 465 U.S. at 16).

Against this backdrop, the Court of Appeals’decision impermissibly ignores and circumvents well-established precedent and federal substantive lawregarding arbitration. Moreover, because the Court ofAppeals’ decision is published, it establishes precedentin the District of Columbia that is inconsistent withcontrolling law, and raised the specter of inconsistentenforcement of FAA arbitration agreements wellbeyond the District.

A. The Lower Courts Improperly Elevated aDistrict Law (the PPA) Over the FAA.

This Court has held repeatedly that when partiesagree to arbitrate claims, the FAA supersedes statelaws that assign primary or exclusive jurisdiction toanother forum. In Southland, for instance, this Courtheld that § 2 of the FAA displaced the CaliforniaFranchise Investment Law, which state courts hadinterpreted to require judicial resolution of claimsbrought under that law. See 465 U.S. at 10-16. Similarly, in Perry v. Thomas, this Court held that § 2of the FAA preempted § 229 of the California Labor

22

Code, which allowed claimants to maintain judicialactions regardless of whether the parties had agreed toarbitrate. See 482 U.S. at 489-91.

More recently, in Preston v. Ferrer, this Courtapplied the same principles to a state law that requireddisputes to be heard in an administrative forum. InPreston, a contract dispute arose between Ferrer, atelevision personality, and Preston, an attorney. See552 U.S. at 350. Ferrer argued that Preston violatedthe California Talent Agencies Act (“TAA”) by servingas an agent without being licensed. Id. at 352. Ferrersought to avoid an arbitration provision in the parties’contract by arguing that the TAA vested the CaliforniaLabor Commissioner with original jurisdiction over thedispute. Id. Preston argued that the TAA wasinapplicable because he was serving as Ferrer’spersonal manager, not an agent, and moved to compelarbitration.

Ferrer urged that the TAA did not precludearbitration entirely, but merely required the dispute tobe submitted to an administrative forum first. Id. at354, 356-58. This Court rejected that argument,because the TAA granted exclusive original jurisdictionto the Labor Commissioner to decide a question thatthe parties had agreed to arbitrate. Accordingly, theCourt held that when parties agree to arbitrate, “theFAA supersedes state laws lodging primary jurisdictionin another forum, whether judicial or administrative.” Id. at 359.

The District and the Court of Appeals attempt toevade the precedent established by Preston, Southlandand Perry by couching the PPA not as a state lawpurporting to vest exclusive jurisdiction in an

23

administrative or judicial forum, but rather as a statelaw whose effect is to withhold the District’s authorityto agree to arbitration. Of course, the PPA saysnothing about arbitration or the authority of Districtofficials to agree to arbitration. The District’sargument and the Court of Appeals’ decision, rather,rest on the implication that because the PPA (whichwas admittedly not applicable to the OCFO) wasincluded in a contract provision and gave thecontracting officer and CAB jurisdiction to heardisputes arising under the contract, and permitted (butdid not exclusively require) civil actions by the Districtin claims involving fraud, Congress intended toprohibit the District from entering arbitrationagreements. Indeed, following this logic, every publiccontracting law across the country that establishes anadministrative officer or board to hear disputes withpublic contractors, or authorizes state attorneysgeneral to pursue fraud claims against governmentcontractors in court, would impermissibly barenforcement of arbitration agreements in contractsimpacting interstate commerce.

In any event, the distinction that the District andthe Court of Appeals draw is meaningless, as the effectis the same – to preclude arbitration. This is preciselythe type of state law application that the FAA and thisCourt’s precedents forbid. In Southland, for instance,the California Supreme Court interpreted a section ofthe California Franchise Investment Law as requiringdisputes to be heard in a judicial forum. See 465 U.S.at 10. That interpretation of state law, in effect, voidedthe parties’ arbitration agreement. This Court heldthat the California Supreme Court’s interpretation“directly conflicts with § 2 of the [FAA] and violates the

24

Supremacy Clause.” Id. For similar reasons, thisCourt held that the state law at issue in Preston wassuperseded. 552 U.S. at 356-59.

As this Court recently held in Concepcion, “[w]henstate law prohibits outright the arbitration of aparticular type of claim, the analysis isstraightforward: The conflicting rule is displaced by theFAA.” 131 S. Ct. at 1747. Nothing in the FAA“suggests an intent to preserve state-law rules thatstand as an obstacle to the accomplishment of theFAA’s objectives.” Id. at 1748.

Here, the Court of Appeals applied a District law –from which the OCFO was exempted – to invalidatefundamental bank documents and agreements, andlodge primary jurisdiction in an administrative orjudicial forum over a dispute that the parties agreed toarbitrate. Attempting to label this impermissibleelevation of District law over the FAA as an issue of theDistrict’s “authority” to enter arbitration agreementscannot cloak the Court of Appeals’ fundamentaldeviation from the established body of federalsubstantive law. Accordingly, this decision conflictswith and stands as an obstacle to the FAA andwarrants review.

B. The Lower Courts Improperly Failed toHarmonize the Governing Documents inAccordance With the FAA and FederalSubstantive Law.

Pursuant to the Congressional policy favoringarbitration and the federal substantive law that hasdeveloped, when it is possible to harmonize anarbitration clause with other contractual provisions,

25

courts must do so. See, e.g., Preston v. Ferrer, 552 U.S.346, 362-63 (2008) (holding that arbitration provisionmust be harmonized with choice-of-law clause to giveeffect to the arbitration provision) (citing Mastrobuonov. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58-59,63-64 (1995)). Here, the Court of Appeals’ use of“contract integration” principles to read an arbitrationprovision out of the parties’ agreement impermissiblyundermines the federal policy that the FAA reflectsand conflicts with federal substantive law.

In Bank Julius Baer & Co., Ltd. v. Waxfield Ltd.,424 F.3d 278 (2d Cir. 2005), the Second Circuitrecognized that when multiple contract documents aresigned at different times and one contains anarbitration provision, under the FAA, the court mustattempt to harmonize them in favor of arbitrability. Bank Julius involved a banking relationship in whichthe account-opening documents that the partiesexecuted included arbitration provisions.15 Id. at 280,282. Later, the parties executed additional agreementsthat lacked arbitration provisions, but contained amerger clause and a forum selection clause layingjurisdiction in “any New York State or Federal courtsitting in New York City.” Id. at 282. The issue waswhether those merger and forum selection clausessuperseded or extinguished the earlier agreement toarbitrate.

The Second Circuit recognized that Congressdeclared a “strong federal policy favoring arbitration as

15 The provision stated that any disputes would be submitted tomediation, and if they were not settled, they would proceed toarbitration. Bank Julius, 424 F.3d at 282.

26

an alternative means of dispute resolution.” Id. at 281(citation omitted). The court then held that the mergerclause neither precluded enforcement of the arbitrationprovision, nor destroyed the earlier agreementscontaining that provision. Id. at 282-83. Otherwise,the court noted, it would produce “absurd results,” asit would expunge the very agreements upon which theaccount rested. Id. at 283.

Turning to the forum selection clause, the courtstated:

Under our cases, if there is a reading of thevarious agreements that permits the ArbitrationClause to remain in effect, we must choose it:“The existence of a broad agreement to arbitratecreates a presumption of arbitrability which isonly overcome if it may be said with positiveassurance that the arbitration clause is notsusceptible of an interpretation that covers theasserted dispute.” WorldCrisa Corp. v.Armstrong, 129 F.3d 71, 74 (2d Cir. 1997)(internal quotation marks omitted). Moreover,we “cannot nullify an arbitration clause unlessthe forum selection clause specifically precludesarbitration.” Personal Sec. & Safety Systems v.Motorola, 297 F.3d 388, 396 n.11 (5th Cir. 2002).

Bank Julius, 424 F.3d at 284. The court noted that theforum selection clause “makes no reference toarbitration,” and explained that both the arbitrationprovision and forum selection clause could be givensome effect and harmonized as “complementary” toeach other. Id. at 284-85. Thus, any doubts about thedispute’s arbitrability “should be resolved in favor of

27

[the arbitration provision’s] coverage [of the dispute].” Id. at 285 (quoting WorldCrisa Corp., 129 F.3d at 74).

Bank Julius cited Patten Securities Corp. v.Diamond Greyhound & Genetics, 819 F.2d 400 (3d Cir.1987), abrogated on other grounds, GulfstreamAerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287(1988), in which the Third Circuit addressed a similarscenario. Patten Securities involved a claim against asecurities broker/dealer that was a NASD member, andthus had agreed to NASD rules providing forarbitration of customer disputes. 819 F.2d at 402, 406. The parties also had signed an underwriting agreementcontaining a forum selection clause stating that courtsin New Jersey would have jurisdiction over disputes. Id. at 403, 407 n.3. The broker/dealer argued that theclaimant had waived its right to arbitration. Id. at 403,406-07.

The Third Circuit rejected this argument, holdingthat the issue was governed by the FAA, and that aforum selection clause should be unenforceable if would“contravene a strong public policy of the forum in whichthe suit is brought.” Id. (quoting M/S Bremen v.Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). Thus,“the forum selection clause must be scrutinizedcarefully, and if doubts arise as to whether this disputeis arbitrable or not, such doubts must be resolved infavor of arbitrability.” Id. at 407.

The Third Circuit then observed that“[c]onspicuously absent from the forum selection clausein the underwriting agreement is any reference toarbitration whatsoever.” Id. The forum selectionclause was “therefore at least ambiguous,” and it waspossible to give effect to both the arbitration

28

requirement and the forum selection clause. Id. Thus,the subsequent agreement did not supersede thearbitration obligation.

The Fourth Circuit recently addressed similarissues in UBS Financial Services, Inc. v. CarilionClinic, 706 F.3d 319 (4th Cir. 2013). The case involvedclaims by a healthcare organization against twofinancial institutions, UBS and Citi, over servicesrelated to a bond issuance. Id. at 321-22. As FINRAmembers, UBS and Citi had agreed to FINRA rulesrequiring arbitration of customer disputes. Id. at 322-24. UBS and Citi argued, however, that the claimswere not arbitrable because the parties had signedagreements containing a forum selection clause thatlay jurisdiction in federal court in New York. Id. at323, 328.

The Fourth Circuit court rejected that argument,holding that any provision purporting to displace thearbitration obligation “must be sufficiently specific toimpute to the contracting parties the reasonableexpectation that they are superseding, displacing, orwaiving the arbitration obligation.” Id. at 328. UBSand Citi argued that the forum selection clausesuperseded the arbitration obligation “by implication,”but the court held otherwise, stating:

[O]ne would reasonably expect that a clausedesigned to supersede, displace, or waivearbitration would mention arbitration. To besure, the sentence might be found to refer toarbitration through use of the word“proceedings,” but then again the sentence doesnot suggest that such arbitration is superseded,displaced, or waived.

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Id. at 329. The court concluded:

[W]e believe that it would never cross a reader’smind that the clause provides that the right toFINRA arbitration was being superseded orwaived. No word even suggesting supersedence,waiver, or preclusion exists in the sentence.

Id. at 330.

As in the instant case, these courts confrontedarguments that arbitration provisions were displacedby subsequent agreements containing merger clausesor provisions establishing jurisdiction in other fora. The courts held that the agreements should beharmonized and the arbitration provisions given effect. But when confronted with the same issue in this case,the Court of Appeals went in the opposite direction,even though it was possible to harmonize thedocuments.

The 2002 RFP – through its “Disputes” provisionand incorporation of the PPA – stated that contractdisputes are within the jurisdiction of the contractingofficer and the CAB. App. 246, 249. The District,however, asserted statutory and common-law tortclaims, not contract claims. The District agreed thatits claims do not arise under or relate to the contract,and argued that its claims fall within the exclusivejurisdiction of the Superior Court, not the contractingofficer and CAB. App. 60. However, as discussedabove, the relevant PPA section at the time was non-mandatory and non-exclusive – it simply said that theDistrict “may bring an action . . . in the SuperiorCourt[.]” App. 135.

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Thus, even if the PPA applies, it is possible to giveeffect to both the Treasury Booklet’s arbitrationprovision and the 2005 Contract, and to harmonizetheir provisions as complementary. The lower courts’interpretation of District law to require only a judicialforum is precisely the outcome that this Court’sdecisions forbid. See, e.g., Preston, 552 U.S. at 352-60(FAA superseded an application of state law requiringresort to an administrative forum); Southland, 465U.S. at 10-16 (FAA superseded interpretation of statelaw that required litigation of franchise disputes incourt). Because it is possible to harmonize thegoverning documents and give effect to the arbitrationprovision, courts must do so.16

Moreover, to hold that the 2005 Contract was“completely integrated” – as the Court of Appeals did –and that all prior agreements were superseded wouldyield the “absurd results” against which Bank Juliuscautioned. That is, it would read out of the parties’agreement the critical account-opening documents,upon which the account rests. See Bank Julius, 424F.3d at 282-83. As in Bank Julius, the account

16 Even if the 2005 Contract could not be harmonized with theTreasury Booklet’s arbitration provision, the latter still wouldcontrol. As discussed above, the District’s Deputy CFO/Treasurerexecuted a second Authorization for treasury services (in which heagreed on the District’s behalf to be bound by the TreasuryBooklet) on March 6, 2006, after the 2005 Contract was signed. Under the 2000 Corporate Resolution, which was never revoked,the Deputy CFO/Treasurer was authorized to sign the 2006Authorization. Moreover, pursuant to the representations andwarranties in the Treasury Booklet, the District’s continued use ofthe CDA reaffirmed the District’s authorization and acceptance ofthe Treasury Booklet. App. 157, 199-200.

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documents and agreements signed by the District –including the Authorizations for treasury services andthe Treasury Booklet – necessarily must remaineffective for the account to operate. As discussedabove, they are the fundamental agreements foropening and maintaining the account. Without them,the account could not function and the District couldnot access the account services. App. 147-160, 162-169. The Court of Appeals’ divergence from the establishedsubstantive federal law of arbitration warrants review.

II. The Lower Courts Improperly Decided IssuesThat Should Have Been Decided by theArbitrator.

In Buckeye Check Cashing, Inc. v. Cardegna, 546U.S. 440 (2006), this Court re-affirmed that a challengeto the validity of a contract, and not just to thearbitration provision within it, is for the arbitrator todecide, not the court. 546 U.S. 444-49. While theDistrict has tried to characterize its position aschallenging only the Treasury Booklet’s arbitrationprovision, its challenge is, in fact, much broader. Where, as here, a party resisting arbitration arguesthat one agreement supersedes an earlier agreementcontaining an arbitration clause, the party is contestingthe earlier agreement as a whole, not just thearbitration clause.

Moreover, in asking the lower courts to hold thatthe 2005 Contract is “completely integrated,” theDistrict challenged the validity of the prior agreements

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it signed in their entirety.17 Similarly, the Court ofAppeals’ conclusion that the 2005 Contract is“completely integrated” would extinguish thoseagreements entirely, not just with respect toarbitration. App. 51. Indeed, the Court of Appealsheld that the 2005 Contract also extinguished theDistrict’s subsequent execution of the Authorizationand Agreement for Treasury Services in March of 2006,in which it again agreed to be bound by the TreasuryBooklet. App. 57-60. Under Buckeye and its progeny,the resolution of such a challenge is for the arbitrator,not the court.

Additionally, as discussed above, the arbitrationclause in the Treasury Booklet incorporates the AAA’sCommercial Arbitration Rules, which submit thearbitrability question to arbitration. When thearbitration agreement provides that the arbitrator willdecide questions of arbitrability, the arbitrator mustdecide challenges to the arbitration agreement, unlessthe resisting party specifically challenges the provisiondelegating that authority to the arbitrator. Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772, 2777-81(2010). Thus, any challenge to the arbitrationprovision is for the arbitrator to decide, not the court.18

17 See, e.g., Masurovsky v. Green, 687 A.2d 198, 202 (D.C. 1996)(“completely integrated” contract “supersedes all otherunderstandings and agreements with respect to the subject matterof the agreement between the parties, whether consistent orinconsistent”); Howard Univ. v. Good Food Servs., Inc., 608 A.2d116, 126 (D.C. 1992) (a “completely integrated” contract is “acomplete and exclusive statement of the terms of the agreement”).

18 Other courts, including circuit courts of appeal and the Districtof Columbia federal district court, have held that when the parties’

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In a similar case, the Fifth Circuit held that whenthe arbitration clause specifies that the arbitrator willdecide arbitrability, the question of whether asubsequent agreement supersedes an arbitrationprovision is for the arbitrator to decide. Agere Sys., Inc.v. Samsung Elecs. Co., 560 F.3d 337, 340 (5th Cir.2009). In Agere, the party opposing arbitration arguedthat a 2000 agreement containing an arbitration clausehad expired and was superseded by a 2006 agreementcontaining no arbitration clause. Id. The 2000agreement’s arbitration clause left issues ofarbitrability to the arbitrator. Id. Thus, the court heldthat the arbitrator must resolve the arbitrability issue. Id.

Other federal and state trial courts applying thefederal substantive law of arbitration have held thatsimilar challenges to a prior agreement providing forarbitration raise issues to be decided by the arbitrator,not the court. For example, in Clyde Bergemann, Inc.v. Sullivan, Higgins & Brion, PPE LLC, No. 08-162-KI,2008 WL 4279632 (D. Or. Sept. 18, 2008), the thresholdissue was whether later versions of an employeehandbook with no arbitration clause superseded a 2002employee handbook, which contained an arbitration

arbitration agreement incorporates AAA Commercial ArbitrationRule R-7 (or its precursor), arbitrability issues are for thearbitrator to decide. See, e.g., Fallo v. High-Tech Inst., 559 F.3d874, 878 (8th Cir. 2009) (incorporating AAA Rules was a “clear andunmistakable expression of the parties’ intent to leave the questionof arbitrability to an arbitrator”); Contec Corp. v. Remote SolutionCo., 398 F.3d 205, 208-09 (2d Cir. 2005) (same); Grynberg v. BPP.L.C., 585 F. Supp. 2d 50, 54-55 (D.D.C. 2008) (same); Avue Techs.Corp. v. DCI Group, LLC, No. 06-327 (JDB), 2006 WL 1147622(D.D.C. Apr. 28, 2006) (same).

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clause. The court held that the challenge was to thevalidity of the contract as a whole and not to thearbitration clause – thus, under Buckeye, it was for thearbitrator, not the court, to decide which handbookapplied. Id. at *2. Likewise, in Holloway v. Jim WalterHomes, Inc., No. 2:05-CV-516-WKW, 2006 U.S. Dist.LEXIS 42274 (M.D. Ala. June 22, 2006), the court heldthat the arbitrator, not the court, would rule on theplaintiff’s argument that a deed superseded a realestate purchase contract containing an arbitration, asthe validity of entire contract was at issue.

Moreover, as the court stated in Ricardi v. ModernSilver Linen Supply Co., 356 N.Y.S.2d 872, 877-78(N.Y. App. Div. 1974), aff’d 335 N.E.2d 856 (N.Y. 1975):

[I]t has been held time and again that the courtis limited to determining only whether a validarbitration agreement was entered into, andwhere there is a broad arbitration provision,issues relating to subsequent acts which mayeffect a cancellation or termination of the priorcontract are properly within the arbitrator’sjurisdiction to decide.

Indeed, the District of Columbia federal court has heldthat where a party alleges that an entire contract wascancelled, “such issues are for arbitrators and not forfederal courts to decide.” Clifton D. Mayhew, Inc. v.Mabro Constr., Inc., 383 F. Supp. 192, 195 (D.D.C.1974).

In short, the Court of Appeals’ decision warrantsreview because it conflicts with this Court’s Buckeyeand Rent-A-Center decisions, and thus stands as anobstacle to the federal substantive law of arbitration as

35

it has been applied in many state and federal lowercourt cases around the country.

III. This Case Presents an Issue of ImportanceWith Serious Implications For ArbitrationAgreements In Public Contracts.

The Court of Appeals’ decision does not exist in avacuum. It will have significant implications for publiccontracts with the District, as it retroactivelyinvalidates arbitration provisions in contracts thatOCFO officials have executed on the District’s behalf. Beyond the District, its potential impact is even moreserious.

Many states and the federal government have lawslike the District’s PPA that establish procurementpractices and authorize administrative officers orboards, or judicial actions, to resolve disputes betweengovernment entities and public contractors.19 Underthe Court of Appeals’ rationale, those laws wouldnullify arbitration provisions in public contracts. Thiswould conflict with the well-established Congressionalpolicy and federal substantive law favoring andpromoting arbitration.

19 See, e.g., 41 U.S.C. §§ 7103, 7104, and 7105; Alaska Stat. §§36.30.620(f) and 36.30.685(a) & (b); Ariz. Rev. Stat. §§ 41-2611(A)& (B), and 41-2614; Ark. Code Ann. § 19-11-246; 30 Ill. Comp. Stat.500/20-75; Hawaii Rev. Stat. § 103D-703; Kentucky Rev. Stat. §§45A.235, 45A.245 and 45A.255; La. Rev. Stat. §§ 39:1673, 39:1685,39:1691; Md. Code Ann., State Fin. & Proc. § 15-211; Mont. CodeAnn. § 18-1-401; 62 Pa. Cons. Stat. §§ 1724 and 1725(f); R.I. Gen.Laws §§ 37-2-46 and 37-2-49; S.C. Code Ann. §§ 11-35-4230, 11-35-4320, and 11-35-4410; Tex. Gov't Code §§ 2260.051, 2260.052, and2260.102; Va. Code Ann. §§ 2.2-4363 and 2.2-4365.

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Moreover, the Court of Appeals’ decision marks anotable advance from prior decisional law eroding theenforceability of arbitration provisions.20 The Districtrelied heavily on District of Columbia v. Greene, 806A.2d 216 (D.C. 2002) (per curiam), and the SuperiorCourt and Court of Appeals both cited it in theirdecisions. In Greene, the District sought to enjoinarbitration in a contract dispute with Verizon. Id. at218. As in this case, the District argued in Greene thatthe arbitration provision in its contract wasunenforceable under the PPA, because the PPAestablished the contracting officer and the CAB as thefora for hearing contract disputes. Id. at 220.

The Court of Appeals agreed and held that underthe PPA, the District could not agree to arbitration. Id.at 220-21. The Court of Appeals further held that theFAA did not preempt the PPA as applied. Id. at 221-23.

20 Indeed, arbitration is nothing new to the District. It isfrequently required to submit to arbitration and has done so in thepast, and has its own statute comparable to the FederalArbitration Act. See Fairman v. District of Columbia, 934 A.2d438 (D.C. 2007) (holding District estopped from claiming it was notauthorized to agree to arbitration); District of Columbia v. Bailey,171 U.S. 161 (1898) (standing for the proposition that unlessexpressly prohibited by statute, a municipality like the Districtmay agree to submit any claim to arbitration); D.C. Code § 16-4401(8) (District’s Revised Uniform Arbitration Act is applicableto “person[s],” which includes a “government, governmentalsubdivision, agency, or instrumentality; public corporation; or anyother legal or commercial entity”).

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Greene is distinguishable from the instant casebecause it involved contract claims. Id. at 220. Bycontrast, the claims in this case are statutory andcommon-law tort claims that, by the District’s ownadmission, do not arise under or relate to the contract,and therefore would not fall within the jurisdiction ofthe contracting officer and the CAB. Nevertheless, theCourt of Appeals expanded the rationale of Greene tocover this case. In so doing, it went beyond Greene andfurther eroded the enforceability of arbitrationagreements, in contravention of the Congressionalpolicy of promoting and favoring arbitration. Thisexpansion counsels strongly in favor of this Courtexercising its discretion to review this case.

CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,

Ava E. Lias-BookerCounsel of Record

Brian A. KahnThomas M. BeshereMcGuireWoods LLP7 Saint Paul Street, Suite 1000 Baltimore, MD 21202(410) [email protected]

February 25, 2014

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APPENDIX

TABLE OF CONTENTS

Appendix A Decision in the District of ColumbiaCourt of Appeals(November 27, 2013) . . . . . . . . . . App. 1

Appendix B Order Denying Bank of America’sMotion to Dismiss, or in theAlternative, Stay Based on ForumSelection and Arbitration Clauses (December 9, 2009) . . . . . . . . . . App. 66

Appendix C Pertinent Constitutional Provisions,Statutes, and Rules

U.S. Const., Art. VI, Clause 2(Supremacy Clause) . . . . . . App. 121

9 U.S.C. § 2 . . . . . . . . . . . . . App. 121

9 U.S.C. § 3 . . . . . . . . . . . . . App. 122

D.C. Code § 1-204.24a . . . . App. 122

D.C. Code § 1-204.24d . . . . App. 124



D.C. Code. § 2-381.02 (formerlycodified as D.C. Code § 2-308.14) . . . . . . . . . . . . App. 133

ii

D.C. Code § 2-381.03 (formerlycodified as D.C. Code § 2-308.15) . . . . . . . . . . . . App. 135

D.C. Appropriations Act 2006, 109Pub. L. No. 115, § 132, 119 Stat.2396, 2522 (2005) . . . . . . . . App. 144

American Arbitration Association,Commercial Arbitration Rules,Rule R-7 . . . . . . . . . . . . . . . App. 144

Financial Management andControl Order No. 97-15Chapter 1, Section A.3 . . . . App. 145Chapter 1, Section B.3 . . . . App. 145

Appendix D Selected Pages from 2000 Bank ofAmerica Treasury Services Booklet . . . . . . . . . . . . . . . . . . . App. 147

Appendix E Certified Copy of CorporateResolutions, executed January 6,2000 . . . . . . . . . . . . . . . . . . . . . App. 161

Appendix F Authorization and Agreement forTreasury Services, executedSeptember 25, 2000 . . . . . . . . . App. 162

Appendix G Authorization and Agreement forTreasury Services, executed March 6,2006 . . . . . . . . . . . . . . . . . . . . . App. 170

Appendix H Selected Pages from 2004 Bank ofAmerica Treasury Services Booklet . . . . . . . . . . . . . . . . . . .App. 179

iii

Appendix I Selected pages and portions from theDistrict of Columbia GovernmentContracting Documents related to theControlled Disbursements BankAccount with Bank of America whichinclude portions of: (i) the November13, 2005, District of Columbia Office ofthe Chief Financial OfficerCONTRACT, for Contract No.:CFOPD-05-C-083 with Bank ofAmerica (App. 206-211); (ii) the June2002 Bank of America Response toRequest for Proposal For FinancialServices For OFT ControlledDisbursement Account RFP No.CFOPD-02-R-019, (2002) Contractor’sTechnical Proposal and Cost Proposal)(App. 212-226); (iii) the April 2005Bank of America Revised RFPResponse (2005 Contractor’s TechnicalProposal) (App. 227-239); and (iv) theMay 22, 2002 Solicitation, Offer andAward CFOPD-02-R-019 RFP issuedby the Office of the District ChiefFinancial Officer (District’s 2002Request for Proposals (“RFP”)) (App.240-252) . . . . . . . . . . . . . . . . . . App. 206

Appendix J Bank of America’s Motion to Dismissor, in the Alternative, Stay Based onForum Selection and ArbitrationClauses, filed January 16, 2009 . . . . . . . . . . . . . . . . . . . . .App. 253

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Appendix K Selected pages from Bank of America’sNotice of Appeal, filed January 7,2010 . . . . . . . . . . . . . . . . . . . . .App. 257

Appendix L Selected pages from Bank ofAmerica’s brief in the District ofColumbia Court of Appeals, filedNovember 15, 2010 . . . . . . . . .App. 264

App. 1

APPENDIX A

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 10-CV-78

[Argued October 19, 2011 Decided November 27, 2013]

BANK OF AMERICA, N.A., et al., )APPELLANTS, )

)v. )

)DISTRICT OF COLUMBIA, )APPELLEE. ) )

Appeal from the Superior Court of theDistrict of Columbia

(CAB-7763-08)

(Hon. Joan Zeldon, Motions Judge)*

(Hon. Frank Burgess, Motions Judge)**

* Judge Zeldon decided the Motion to Compel Arbitration.

** Judge Burgess decided the Motion to Stay.

App. 2

Ava E. Lias-Booker, with whom SamanthaThompson, Brian A. Kahn, Adrienne J. Lawrence, andMichelle N. Lipkowitz, were on the brief, for appellants.

Stacy L. Anderson, Assistant Attorney General,with whom Irvin B. Nathan, Acting Attorney Generalfor the District of Columbia at the time the brief wasfiled, Todd S. Kim, Solicitor General, and Donna M.Murasky, Deputy Solicitor General, were on the brief,for appellee.

Before BLACKBURNE-RIGSBY and THOMPSON,Associate Judges, and WAGNER, Senior Judge.

WAGNER, Senior Judge: Appellants, Bank ofAmerica, N.A. and Bank of America Corporation(hereinafter collectively referred to as Bank of Americaor the Bank), appeal from an order of the trial courtdenying the Bank’s motion to compel arbitration underthe Federal Arbitration Act (FAA) of the District ofColumbia’s claims for damages for losses incurred asthe result of a protracted fraudulent schemeperpetrated by the District’s employees and allegedlyfacilitated by Bank of America. Bank of America arguesthat the trial court erred in its ruling because all of theDistrict’s claims are within the scope of a contractualagreement that requires arbitration in the state ofNorth Carolina. The District’s position is that therewas no valid arbitration agreement, or alternatively, itsclaims do not fall within the scope of any agreementbetween the parties. We affirm the decision of the trialcourt holding that the parties had no valid agreementto arbitrate their dispute in North Carolina orelsewhere and retaining jurisdiction of the District’sclaim under the Fraud Claims Act. We remand the caseto the trial court for further proceedings consistent

App. 3

with this opinion as it relates to the remaining countsof the District’s amended complaint.

I. Procedural Background

This action arises out of a fraudulent scheme by aformer manager in the District’s Real Property TaxAdministration Adjustment Unit in its Office of Taxand Revenue. The District filed a complaint againstBank of America, Walter R. Jones, Jr., HarrietteWalters, Jayrece Elaine Turnbull, and unknown Janeand John Does alleging that they participated in aconspiracy that utilized a Controlled DisbursementAccount (CDA or CD Account) that the Districtmaintained with Bank of America to process fraudulenttax refund checks. Specifically, the District alleged thatWalters, a former District employee, used herknowledge of the District’s property tax refund processto prepare and ensure approval of the fraudulentchecks which were given to co-conspirators to depositor cash through the Bank. According to the complaint,Jones, an assistant branch manager for the Bank, andother unknown bank personnel facilitated thenegotiation of the fraudulent checks. As theories ofliability, the District asserted: (1) violation of theUniform Commercial Code (UCC) (D.C. Code § 28:3-404(2001)); (2) violation of UCC § 28:3-405; (3) negligence;(4) fraud; (5) breach of fiduciary duty; (6) conversion;(7) violation of the D.C. False Claims Act (FCA) (D.C.Code § 2-308.14 (2006 Repl.));1 and (8) negligence intraining, hiring and supervising bank personnel. Asrelief, the District sought repayment of all funds losttotaling $39,212,815.24. Under the False Claims Act, it

1 This provision has been recodified at D.C. Code § 2-381.02.

App. 4

sought treble damages of $117,212,815.24, penalties of$10,000 plus costs and attorney’s fees.

The Bank filed a “Motion to Dismiss, or in theAlternative, Stay Based on Forum Selection andArbitration Clauses,” which the trial court treated as aMotion to Compel Arbitration under the FederalArbitration Act, 9 U.S.C. § 1 et seq. In its motion, theBank asserted that the District’s claims are subject toarbitration pursuant to a clause in its Treasury ServiceBooklet (TSB) requiring arbitration of disputes relatedto the account or bank services and a forum selectionclause in its Deposit Agreement (DA) requiring anyproceeding regarding the CD Account to be brought inNorth Carolina. Concluding that the parties’voluminous filings did not make clear what documentscontrolled the dispute, the trial court held anevidentiary hearing in order to ascertain whether theyhad an agreement to arbitrate in North Carolina.Following completion of the hearing proceedings, thetrial court denied the Bank’s motion by written orderin which it found that the parties’ 2005 contractprovisions superseded any dispute resolution or forumselection clauses previously agreed upon and that thesignatories to any documents executed subsequentlylacked authority to bind the District to arbitration inNorth Carolina. The court retained jurisdiction of theFalse Claims Act count explaining that the FCA is apart of the Procurement Practices Act of 1985 (PPA),which the parties incorporated into their 2005agreement, and that actions thereunder are within theSuperior Court’s exclusive jurisdiction under D.C. Code

App. 5

§ 2-301 et seq.2 The court dismissed the District’sremaining claims, holding that they are within theexclusive jurisdiction of the District’s own contractingofficer and the Contract Appeals Board (CAB).

The Bank filed a motion to alter or amend the trialcourt’s order and to certify certain rulings to this courtfor review. The Bank noted this appeal before the trialcourt (J. Zeldon) denied the motion to alter or amend.The trial court (J. Burgess) granted the Bank’s motionto stay the proceedings on the FCA claim and stayedthe dismissal of the District’s remaining counts.However, the order permitted the District to pursue itscontract claims before the District’s ContractingOfficer.

The Bank filed in this court a Motion to StayProceedings, or in the Alternative Enjoin the DistrictPending Appeal, in which it requested a stay orinjunction to prevent the District from initiatingproceedings before a contracting officer during thependency of this appeal. This court denied that motionand ordered the Bank to show cause why the appealshould not be dismissed for lack of jurisdiction ashaving been taken from a non-final order, citing In reCalomiris, 894 A.2d 408, 408 (D.C. 2006), Hercules &Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071n.6 (D.C. 1991), and D.C. Code § 11-721 (d) (2001).Without resolving the jurisdictional question, this courtissued an order vacating the Show Cause order, statingthat “[t]he Supreme Court’s decision in Andersen LLP

2 The Procurement Practices Reform Act of 2010 which came intoeffect April 8, 2011, repealed these provisions. See D.C. Law 18-371, § 1201 (a), 58 D.C. Reg. 1185 (Apr. 8, 2011).

App. 6

v. Carlisle, 129 S. Ct. 1896 (2009) may [a]ffect theapplicability of Calomiris, 894 A.2d at 410.” In thatorder, this court set a briefing schedule and requestedthe parties to discuss the opinion in Carlisle in theirbriefs. For the reasons set forth in part III A., infra, weconclude that this court has jurisdiction of the appeal.

II. Factual Background and Trial Court’s Decision

A. Factual Summary

Before addressing the issues, we outline in somedetail the factual background essential to anunderstanding of the parties’ arguments and ourdisposition. At least since the 1990s, the District hasmaintained a Controlled Disbursement Account withBank of America or its predecessors.3 In July 1999,after Bank of America merged with its most recentpredecessor, Nations Bank, the account wasmaintained in North Carolina. On January 6, 2000,Valerie Holt, then Chief Financial Officer (CFO) for theDistrict, executed a “Certified Copy of CorporateResolutions — Opening and Maintaining DepositAccounts and Services,” which designated the CFO, theDeputy CFO/Treasurer, and the Associate Treasurer aspersons authorized “to execute and sign anyapplication, deposit agreement, signature card and any

3 “A CDA is a specialized business service for deposit accountsthrough which the District of Columbia is notified, at a specifictime each business day, of the number and amount of all District-issued checks that will be presented for payment that day. . . . Theservice allows the District to transfer to its CDA the exact amountof money necessary to cover the checks presented and to allow idlefunds to be invested elsewhere.”

App. 7

other documentation required by the Bank to open saidaccounts.”4 That same day, CFO Holt signed asignature card for the CDA and verified the signaturesof three others to act under the Corporate Resolution.5

The signature card states that by signing, the signatoryagrees that the account is to be governed by the termsand conditions set forth in the Bank’s Deposit andDisclosures Agreement (Deposit Agreement), includingany amendments. The trial court found that allrelevant Deposit Agreements specify North Carolina asthe location for resolution of disputes and give theBank the right unilaterally to amend its own DepositAgreement. According to evidence at the hearing,completion of a signature card was required to addsignatories to the account. Between 2000 andNovember 13, 2005, a number of District officialssigned signature cards to add or remove names fromthe account. These included CFO Dr. Natwar Gandhi,successor to CFO Holt, Associate Treasurer Lasana

4 The Corporate Resolution also authorized the named individualsto do the following:

to enter any agreements with the Bank for the provisionby the Bank of various Treasury Management services to[the District of Columbia] as such officer or employee maydetermine, in his or her sole discretion, and to sign anyand all documents and take all actions required by theBank relative to such Treasury Management services . . .and that any such Treasury Management agreement(s)shall remain in full force and effect until written notice toterminate given in accordance with the terms of any suchagreement shall have been received by the bank. . . .

5 In addition the CFO Holt, Dr. William Hall, Deputy CFO andTreasurer, and two Associate Treasurers were identified aspersons authorized to act under the Corporate Resolution.

App. 8

Mack, and Interim Associate Treasurer AlcindorRosier. One of the signature cards signed by Dr.Gandhi stated that by signing, he “agree[d] . . . [t]o begoverned by the terms and conditions” set forth in theDeposit Agreement. Dr. Gandhi, Mr. Mack, and Mr.Rosier testified that they signed signature cards only toopen an account or to add or remove signatories.

On September 25, 2000, Acting DeputyCFO/Treasurer, John Robinson, and Interim AssociateTreasurer and Bank Manager, Alcindor Rosier,executed an “Authorization and Agreement forTreasury Services” (Authorization) agreeing to bebound by the Treasury Booklet. The trial court foundthat the 2000 Corporate Resolution authorized Rosierand Robinson to enter an agreement for treasuryservices. On September 25, 2000, Associate TreasurerLasana Mack signed a certification attesting to theauthenticity of the signatures of Rosier and Robinsonand to his own authority to execute the certification.The certification form states that “[i]f the client is agovernmental entity, the entity’s counsel must sign thisCertification.” Mr. Mack was not the District’s counselor a lawyer. A clause in the referenced TreasuryBooklet provides for services described therein to bearbitrated “in accordance with the United StatesArbitration Act . . . under the Commercial ArbitrationRules of the American Arbitration Association” (AAARules). The trial court found that although theAuthorization states “in small print” that the Clientreceived a copy of the Authorization and Agreement forTreasury Services, there was no evidence that theBooklet was provided to Robinson and Rosier whenthey signed signature cards.

App. 9

In 2002, the Office of Contracting and Procurementfor the Office of the Chief Financial Officer issued arequest for proposals (RFP) for ControlledDisbursement Account Services. The RFP requiredbidders to include in their proposals Paragraph 8,“Dispute Resolution,” which provides:

[i]f a dispute arises under or relates to thecontract, a claim by the Contractor shall bemade in writing and submitted to theContracting Officer for a written decision. Aclaim by the District against the Contractorshall be subject to written decision by theContracting Officer.6

The RFP stated that the Contracting Officer was “theonly official authorized to contractually bind theDistrict” and that the Contract Administrator had “theresponsibility of ensuring that the work conforms to therequirements of the contract.” The RFP also requiredthat the Procurement Practices Act of 1985 (PPA) (D.C.Code § 2-301.01 et seq. (2001)) (PPA) be incorporated byreference into the contract.

After a pre-bid conference attended byrepresentatives from several banks, Bank of America

6 The RFP defines “claim” as

a written demand or written assertion by one of thecontracting parties seeking, as a matter of right, thepayment of money in a sum certain, the adjustment orinterpretation of contract terms, or other relief arisingunder or related to the contract. A claim arising under acontract, unlike a claim relating to that contract, is a claimthat can be resolved under a contract clause that providesfor the relief sought by the Claimant.

App. 10

submitted a Technical Proposal and Cost Proposal forthe CDA contract. The Bank’s Cost Proposal includedthe required clauses described in the RFP. The Bank’sTechnical Proposal included a Table of Contents thatreferenced an Agreements/Documentation sectionlisting the following documents: (1) Terms andConditions for Treasury Services; (2) Signature Card &Resolution; (3) Wire Transfer Form; (4) AutomatedInvestment Service Agreement; (5) Bank of AmericaDirect Profile; and (6) Electronic Pay Profile. It did notinclude a copy of the Treasury Services Terms andConditions booklet. Following a page entitled“Agreements/Documentation,” there were several blankforms, including Authorization and Agreement forTreasury Services, Authorization and AgreementCertification, Treasury Services Delegation ofAuthority, Business Signature Card, and a resolutionfor unincorporated associations, which, the Bankacknowledges, was included in error. A representativefor the Bank testified that he intended that thesedocuments become a part of the contract. The partiesdid not sign a contract at that time.

On March 31, 2005, the Office of ContractProcurement issued an amendment to the original 2002RFP and requested that the banks that had respondedpreviously provide their Best and Final Offers for theCDA. A Bank of America representative, Mr. Bianchi,testified that he was told to update only the Bank’sportion of the response; therefore, he updated the priceproposal and included the same Agreements/Documentation section the Bank submitted previously. He also testified that he provided a copy of theTreasury Service Booklet in a separate packet with theintention that it would constitute additional terms of

App. 11

the contract. Mr. Bianchi signed the contract on behalfof the Bank, and on November 13, 2005, Ms. AngelaLong Jiggets-Bazzi, a Contract Specialist, who workedin the Office of the Chief Financial Office, signed thecontract. The 2005 contract includes the followinglanguage: “[t]he intent of this contract is for acontractor to manage the disbursement account inaccordance with the published Request for Proposal.”This contract also contains a merger clause whichreads: “[t]his contract, including specificallyincorporated documents, constitutes the total andentire agreement of the parties. All previousdiscussions, writings and agreements are mergedherein.”

After execution of the 2005 contract, Districtemployees signed a number of signature cards andauthorizations to remove and add new signatories tothe CDA. On March 6, 2006, after becoming theDistrict’s OFT Treasurer, Mr. Mack signed anAuthorization and Agreement for Treasury Servicesthat states, in part, that the signer has received theTreasury Services Booklet and agrees to adhere to itsterms. Mr. Mack testified, however, that he thought hewas simply opening two bank accounts and that he didnot intend to modify the 2005 contract between theBank and the District. That same day, the Chief ofStaff for the Office of Finance and Treasury, UlyssesGlen, Jr., signed a form certifying that Mr. Mack’ssignature was the “true signature of a personauthorized to execute the form on behalf of the Client.”This certification form also states that for agovernmental entity, its “counsel, or any otherindividual as permitted by the entity’s organizationaldocuments” should sign. The trial court found that Mr.

App. 12

Glen was not a lawyer and that no evidence wasintroduced to demonstrate his authority to sign thedocument on behalf of the District.

On April 17, 2006, Mr. Mack signed a signaturecard naming himself and two others as authorizedsignatories for various accounts with the Bank,including the CDA. This signature card stated that thesigner was accepting the “Authorization” in the firstpart of the document that stated “[t]he depositagreement we give you is part of your agreement withus regarding use of your account and tells you thecurrent terms of our deposit accounts.” Mr. Mack alsotestified that he did not intend to modify the parties’contract by signing the signature cards. The Districtexercised its option to extend the 2005 contract for one-year periods in October 2006, November 2007, andNovember 2008.

B. The Trial Court’s Ruling

The trial court found that the parties’ 2005 writtencontract governing dispute resolution and authority tomodify the contract superseded “(1) any disputeresolution or forum selection clauses the Bank claimswas previously agreed upon and (2) and any provision. . . which would allow other District officials to agreeto arbitration in North Carolina (or elsewhere).”7 Thus,the court could not find, as the Bank urged, that the2006 Authorization and Agreement for Treasury

7 The trial court also found that the claims involved in thelitigation fall within the scope of the arbitration and forumselection provisions set out in the Treasury Services Booklet andDeposit Agreement upon which the Bank relied.

App. 13

Service signed by the Deputy CFO/Treasurer wasvalidly executed or that any signature cards signedafter the 2005 contract bound the District to the forumselection provision in the 2008 Deposit Agreement. Thetrial court declined to dismiss the claim asserted underthe False Claims Act, reasoning that the PPA, which isincorporated into the 2005 contract, makes theSuperior Court the appropriate forum for claims underthat Act. As an additional legal basis for concludingthat the parties had no agreement to arbitrate in NorthCarolina, the trial court held that the PPA withheldfrom District officials the authority to agree to thearbitration and forum selection clauses in thedocuments relied upon by the Bank.

III. Preliminary Issues

A. Jurisdiction

The question of this court’s jurisdiction was raisedinitially in an order to show cause why the appealshould not be dismissed as having been taken from anon-final order, which cited Calomiris, supra, 894 A.2dat 408, and Hercules & Co., supra, 592 A.2d at 1069.Subsequently, the court vacated the order to showcause, stating that “the Supreme court’s decision inAndersen LLP, supra, 129 S. Ct. at 1896 may [a]ffectthe applicability of Calomiris, 894 A.2d at 410,” settinga briefing schedule, and directing the parties to discussAndersen in their briefs. Appellant argues thatCalomiris is not applicable to the present case and thatAndersen and our case law support immediateappellate jurisdiction over appeals from denials ofmotions to compel arbitration. The District does notcontend otherwise. Nevertheless, this court must besatisfied that it has jurisdiction. Therefore, we consider

App. 14

the jurisdictional questions raised by the motionspanel.

The Bank argues that this court has jurisdictionbecause the appeal is from an order denying its motionto compel arbitration based on a written agreementthat it contends governs the parties’ contractualrelationship. Citing Andersen, supra, 129 S. Ct. at1896, the Bank contends that such orders have beenheld to be final and immediately appealable under 9U.S.C. § 16 (a)(1)(A) of the Federal Arbitration Act andD.C. Code § 11-721 (a). In Andersen, the SupremeCourt considered “whether appellate courts havejurisdiction under § 16 (a) [of the FAA] to reviewdenials of stays by litigants who were not parties to therelevant arbitration agreement, and whether § 3 canever mandate a stay in such circumstances.”8 Andersen,129 S. Ct. at 1899. The District Court had deniedpetitioners’ demand for arbitration and request for astay, and the Sixth Circuit dismissed their

8 Section 16 (a)(1)(A) of the FAA provides that “[a]n appeal may betaken from . . . an order . . . refusing a stay of any action underSection 3 of this title.” 9 U.S.C. § 16 (a)(1)(A) (2006). Section 3provides, in pertinent part:

If any suit or proceeding be brought in any of the courts ofthe United States upon any issue referable to arbitrationunder an agreement in writing for such arbitration, thecourt in which such suit is pending, upon being satisfiedthat the issue involved in such suit or proceeding isreferable to arbitration under such an agreement, shall onapplication of one of the parties stay the trial of the actionuntil such arbitration has been had in accordance with theterms of the agreement.

9 U.S.C. § 3 (2006).

App. 15

interlocutory appeal for lack of jurisdiction. Id. at 1900.The Supreme Court reversed, holding that the SixthCircuit had jurisdiction to review the denial of the § 3stay and that a non-party to the arbitration agreementmay invoke § 3 if the relevant state contract lawpermits him to enforce it. Id. at 1903. Pertinent to ourjurisdictional question, the Supreme Court stated inAndersen:

Ordinarily, courts of appeals have jurisdictiononly over “final decisions” of district courts. 28U.S.C. § 1291. The FAA, however, makes anexception to that finality requirement, providingthat “an appeal may be taken from . . . an order. . . refusing a stay of any action under section 3of this title.” 9 U.S.C. § 16 (a)(1)(A). By thatprovision’s clear and unambiguous terms, anylitigant who asks for a stay under § 3 is entitledto an immediate appeal from denial of thatmotion — regardless of whether the litigant is infact eligible for a stay. . . .

. . . Jurisdiction over the appeal, . . . “must bedetermined by focusing upon the category oforder appealed from, rather than upon thestrength of the grounds for reversing the order.”Behrens v. Pelletier, 516 U.S. 299, 311, 116 S. Ct.834, 133 L.Ed. 2d 773 (1996). The jurisdictionalstatute here unambiguously makes theunderlying merits irrelevant for even utterfrivolousness of the underlying request for a § 3stay cannot turn a denial into something otherthan “an order . . . refusing a stay of any actionunder section 3. 9 U.S.C. § 16 (a).”

Id. at 1900-01.

App. 16

In the present case, the Bank demanded arbitrationof the District’s claims under the FAA as provided forin written documents that it contends govern theparties’ relationship. Treating the Bank’s request as amotion to compel arbitration, the trial court denied themotion after an evidentiary hearing, concluding thatthe controlling contract did not provide for arbitration.The trial court concluded, inter alia, that a subsequentagreement superseded any prior agreement providingfor arbitration and that later agreements wereineffectual because the signatories to them lackedauthority to bind the District. With one exception, italso denied a stay of all claims, thereby allowing theunstayed claims to proceed in another forum (i.e.,before the Contracting Officer and the ContractAppeals Board.)9

The Bank argues that, under Andersen, it is entitledto appellate review from the denial of its motion tocompel arbitration and for a stay. Andersen supportsthe Bank’s argument. Here, the Bank relied upon awritten agreement containing a provision forarbitration under the FAA, albeit one that the trialcourt found, after an evidentiary hearing, had beensuperseded by subsequent agreements. Whether theBank can prevail ultimately on its argument that theagreement containing the arbitration provision controlsgoes to the merits of the controversy rather than theappellate court’s jurisdiction to adjudicate it. As theSupreme Court stated in Andersen, jurisdiction overthe appeal is determined by the category of the order

9 The trial court retained jurisdiction of only the fraud claim andstayed the action as to that claim.

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appealed from rather than the strength of the groundsfor overturning it. Andersen, supra, 129 U.S. at 1900.Thus, an appeal from the denial of the Bank’s motionto compel arbitration and stay the court’s denial of themotion would be immediately appealable under theFAA. See id. at 1900-01.

Moreover, case precedents from this court alsosupport our jurisdiction to review the denial of theBank’s motion to compel arbitration. This court hasexercised jurisdiction of an appeal from an orderdenying a motion to compel arbitration, concluding thatit is a final order, appealable pursuant to D.C. Code§11-721 (a)(1).10 See, e.g., 2200 M Street LLC v. .Mackell, 940 A.2d 143, 147 & 147 n.2 (D.C. 2007)(citing D.C. Code § 16-4317 (a)(1)11 and Umana v.

10 D.C. Code § 11-721 (a)(1) (conferring jurisdiction upon the D.C.Court of Appeals from “all final orders and judgments of theSuperior Court of the District of Columbia”).

11 D.C. Code § 16-4317 (a)(1) then provided that for purposes ofappeal, an order denying an application to compel or stayarbitration was a final order. This section was a part of theUniform Arbitration Act, D.C. Code §§ 16-4301, -4319 (DCUAA)that was repealed effective July 1, 2009. 55 DCR 1847 (Feb. 27,2008). The Revised Uniform Act also provides that an appeal maybe taken from “[a]n order denying or granting a motion to compelarbitration.” D.C. Code § 16-4427 (a)(1) (2001). This court has notresolved the question of the validity of the apparent jurisdictionalgrant by the Council to this court under the DCUAA or the RevisedUniform Act. See Masurovsky v. Green, 687 A.2d 198, 201, n.1(D.C. 1996) (declining to decide the issue because of jurisdiction toreview an interlocutory order under D.C. Code § 11-721 (a)(2)(A));Umana, supra, 699 A.2d at 722 (holding that “the DCUAA does notattempt to confer jurisdiction upon this court under thecircumstances of this case,” and therefore, it need not decide

App. 18

Swindler & Berlin, 669 A.2d 717, 723 (D.C. 2005))(other citation omitted). This court has also held thatit had jurisdiction over the appeal of an interlocutoryorder denying a motion to compel arbitration underD.C. Code § 11-721 (a)(2)(A) because the order“‘frustrate[d] arbitration.’” Mausurovsky, supra note 11,687 A.2d at 201 n.1 (quoting Brandon v. Hines, 439A.2d 496, 506-07 (D.C. 1981) and citing Umana, supra,669 A.2d at 721 & n.11)). In Brandon, we concludedthat an order denying a motion to confirm anarbitration award and requiring the parties to go totrial is an appealable interlocutory order dissolving aninjunction under D.C. Code § 11-721 (a)(2)(A) (1973).12

Brandon, 439 A.2d at 500. In reaching this conclusion,this court found persuasive the Supreme Court’sopinion in Carson v. Am. Brands, Inc., 450 U.S. 79, 90(1981), interpreting the federal interlocutory appealsstatute that has language virtually identical to ourlocal statute.13 Brandon, 439 A.2d at 509. This courtobserved in Brandon that the trial court’s order, ifentered by a federal court, would have been “anappealable interlocutory order ‘dissolving’ an‘injunction’ under 28 U.S.C. § 1292 (a)(1).” Id. Thus, we

whether D.C. Code § 16-4317 is consistent with the Home RuleAct).

12 D.C. Code § 11-721 (a)(2)(A) confers jurisdiction upon theDistrict of Columbia Court of Appeals from interlocutory orders ofthe Superior Court “granting, continuing, modifying, refusing, ordissolving or refusing to dissolve or modify injunctions.” Thissection remains unchanged in the 2001 edition of the Code.

13 The federal appellate jurisdictional statute referenced was 28U.S.C. § 1292 (a)(1) (1976).

App. 19

concluded that “denials — but not grants — of stays oflitigation pending arbitration are appealableinterlocutory orders, since only orders that frustrate (incontrast with facilitate) arbitration impose asufficiently serious injury to justify an immediateappeal.” Id. at 506-07.14

It was this court’s decision in Calomiris, supra, thatprompted the motions panel to raise the jurisdictionalquestion. In Calomiris, this court dismissed for lack ofjurisdiction an appeal from an order denying summaryjudgment to one of four trustees who argued that thetrust instrument required that disputes overadministration of the trust be resolved by arbitration.Calomiris, 894 A.2d at 408, 411. Appellant argued thatthis court had jurisdiction because the order appealedfrom was either (1) a final appealable order under D.C.Code § 16-4317 (i.e., an order denying a motion tocompel arbitration), or (2) an appealable interlocutoryorder under Brandon, supra, 439 A.2d at 507 (i.e., onethat frustrates the arbitration process). Calomiris, 894A.2d at 408-09. In Calomiris, we rejected the statutoryargument because the arbitration provision at issuewas established by Will, and not by contract asrequired for applicability of the statute.15 Id. at 409-10.

14 Under § 16-4427 of the current Revised Arbitration Act, “[a]nappeal may be taken from . . . An order denying or granting amotion to compel arbitration” (italics added).

15 D.C. Code § 16-4317 (a)(1) provided that for purposes of appeal,certain orders shall be deemed final, including “[a]n order denyingan application to compel arbitration made under section 16-4302.”Proceedings to compel or stay arbitration under §16-4302 requireda showing of an agreement as described in § 16-4301. (See note 9,

App. 20

Thus, this court held in Calomiris that the will thatcontained the arbitration provision was not a contractwithin the meaning of the District’s UniformArbitration Act. Id. at 410. Similarly, the courtdetermined that the interlocutory order rule ofBrandon v. Hines presupposed that the parties agreedby contract to arbitration, and therefore the rule wasinapplicable to the facts presented. Calomiris, 894 A.2dat 410.

The condition precedent found lacking in Calomirisis present in this case. Here, the Bank does rely upona written contract containing an arbitration provision.Although the trial court found that this contract wassuperseded by another agreement between the partiesthat does not provide for arbitration, such a meritsdetermination cannot foreclose appellate review of thetrial court’s decision. See Andersen, supra, 129 S. Ct. at1900. Otherwise, the trial court’s determination thatthe contract with the arbitration clause was supersededand does not govern the dispute would effectivelyforeclose appellate review. Nothing in Calomirisrequires such a result. For all of these reasons, we aresatisfied that this court has jurisdiction of this appeal.See Mackell, supra, 940 A.2d at 147 n.2 (holding thatdenial of a motion to compel arbitration is a finalappealable order allowing this court to exercisejurisdiction pursuant to D.C. Code § 11-721); see alsoAndersen, supra, 129 S. Ct. at 1900-01 (holding thatthe FAA provides for an immediate appeal of an order

supra). Calomiris, supra, 894 A.2d at 409. The court concludedthat a Will establishing a trust is not a written agreement orcontract. Id.

App. 21

refusing a stay under the Act as determined by thecategory of the order appealed from rather than thestrength of the grounds for reversal).

B. Forum Challenge

The Bank argues that the trial court erred inresolving the District’s objections to the existence,scope or validity of the parties’ arbitration agreement.It contends that, under applicable law, these issues arefor the arbitrator; therefore, the trial court erred indenying its motion to compel arbitration. The Districtresponds that its challenges to the arbitration clauseitself and to the validity of the post-2005 contractsbased on whether the person lacked authority to bindthe District are properly resolved by the court.16

16 The District also argues that the Bank is judicially estoppedfrom contending in this court that it was for the arbitrator todecide the validity and scope of the arbitration agreement becauseit affirmatively asserted a contrary position in the trial court. TheBank responds that the judicial estoppel rule does not applybecause its position on appeal is not clearly inconsistent with theone it maintained in the trial court.

“The doctrine of judicial estoppel precludes a party from takingone position on an issue in the trial court and the opposite positionon appeal.” Fairman v. District of Columbia, 934 A.2d 438, 443(D.C. 2007) (citations omitted). It is an equitable doctrine intendedto protect the judicial process from improper use. New Hampshirev. Maine, 532 U.S. 742, 751-52 (2001) (citations omitted). Factorsrequired for application of the doctrine include: (1) a clearinconsistency between the party’s earlier position and later one;(2) success in asserting the prior position thereby creating theperception that one of the courts was misled; and (3) therealization of an unfair advantage by one party or the impositionof an unfair detriment to the opposing party. Id. at 752 (citationsomitted).

App. 22

We start with the basic principle that “arbitrationis simply a matter of contract between the parties; it isa way to resolve those disputes — but only thosedisputes — that the parties have agreed to submit toarbitration.” First Options of Chicago, Inc. v. Kaplan,514 U.S. 938, 943 (1995); accord, Sandvik AB v. AdventInt’l. Corp., 220 F.3d 99, 105 (3d Cir. 2000) (citationomitted) (noting that a party cannot be required tosubmit to arbitration when he has not agreed to do sobecause arbitration is a matter of contract). Generally,in deciding whether the parties agreed to arbitration,the courts apply ordinary state-law contract principles.First Options, 514 U.S. at 944 (citations omitted). Thisgeneral rule is subject to qualification when decidingwhether the parties have agreed to have the arbitratordecide the question of arbitrability. Id. With respect tothis issue, the Supreme Court has admonished that“[c]ourts should not assume that the parties agreed toarbitrate arbitrability unless there is ‘clea[r] andunmistakabl[e]’ evidence that they did so.” Id. (quoting

The record supports the Bank’s claim that the position it tookin the trial court is not clearly inconsistent with the position itasserts on appeal. First, the District concedes that the Bankmaintained in the trial court, as it does on appeal, that a challengeto the validity of the contract as a whole was for the arbitrator.Second, the record shows that the Bank argued that the arbitrator,not the court, had the authority to determine whether theDistrict’s claims are arbitrable. It contended that all the District’sclaims are subject to arbitration and therefore, the trial courtshould dismiss them or stay the action and direct the parties toproceed to arbitration. Finally, as the Bank points out, it was notsuccessful in advancing these positions in the trial court. For thesereasons, we agree that the judicial estoppel rule is not applicablehere.

App. 23

AT & T Technologies, Inc. v. Communications Workers,475 U.S. 643, 649 (1986)).

Challenges to arbitration agreements may bedirected to the validity of the arbitration clause itself orto the contract as a whole. Buckeye Check Cashing v.Cardegna, 546 U.S. 440, 444 (2006). Guided by § 4 ofthe FAA, the Supreme Court has held that a challengeto the making of the arbitration agreement itself isproperly resolved by court, while a challenge to thevalidity of the contract as a whole is for thearbitrator.17 Prima Paint Corp. v. Flood & ConklinMfg. Co., 388 U.S. 395, 402 (1967) (holding that it is forthe federal court to adjudicate a claim of fraud in theinducement of the arbitration clause itself, but notclaims of fraud in the inducement of the contract as awhole); Keeton v. Wells Fargo Corp., 987 A.2d 1118,1122 (D.C. 2010) (holding that a claim that thearbitration clause is unconscionable disputes itsvalidity and is for the court, not the arbitrator, todecide). More recently, in Buckeye, the Supreme Courtsummarized these principles, as extracted from its

17 Section 4 of the FAA provides in pertinent part:

A party aggrieved by the alleged failure, neglect, orrefusal of another to arbitrate under a written agreementfor arbitration may petition any United States districtcourt . . . for an order directing that such arbitrationproceed in a manner provided for in such agreement . . . .[U]pon being satisfied that the making of the agreementfor arbitration or the failure to comply therewith is not inissue, the court shall make an order directing the partiesto proceed to arbitration in accordance with the terms ofthe agreement . . . .

App. 24

precedents, that are pertinent to the issue presentedhere.

First, as a matter of substantive federalarbitration law, an arbitration provision isseverable from the remainder of the contract.Second, unless the challenge is to the arbitrationclause itself, the issue of the contract’s validity isconsidered by the arbitrator in the first instance.Third, this arbitration law applies in state aswell as federal courts.

Buckeye, 546 U.S. at 445-46 (citing Prima Paint, 388U.S. at 403 and 404 and Southland Corp. v. Keating,465 U.S. 1 (1984))18 (emphasis added). With theseprinciples in mind, we review the parties’ respectivearguments.

The Bank asserts that the arbitration clause in theTreasury Booklet that incorporates by reference theAAA Commercial Arbitration Rules requires theparties to submit the arbitrability question itself toarbitration. Specifically, the Bank cites Rule R-7 thatprovides:

(a) The arbitrator shall have the power to ruleon his or her own jurisdiction, including any

18 In Southland, supra, the Supreme Court held that the FAAcreated a body of federal substantive law applicable in state andfederal courts, and it rejected the notion that, even for state lawclaims in state court, state-law could bar enforcement of § 2 of theFAA. 465 U.S. at 10-14. Section 2 provides that a written provisionin a contract to settle or submit to arbitration a controversy arisingout of it “shall be valid, irrevocable, and enforceable, save uponsuch grounds as exist at law or in equity for the revocation of anycontract.” 9 U.S.C. § 2.

App. 25

objections with respect to the existence, scope orvalidity of the arbitration agreement.

(b) The arbitrator shall have the power todetermine the existence or validity of a contractof which an arbitration clause forms a part.Such arbitration clause shall be treated as anagreement independent of the other terms of thecontract. A decision by the arbitrator that thecontract is null and void shall not for that reasonalone render invalid the arbitration clause.

Commercial Arbitration Rule R-7. The Bank arguesthat incorporation of these rules into the contract show“clearly and unmistakably” that the parties intendedfor the arbitrator to decide the issue of arbitrability.See First Options, supra, 514 U.S. at 944 (requiringthat the parties’ intention for the arbitrator to decidearbitrability be shown “clearly and unmistakably”). Insupport of its position, the Bank relies primarily uponthe Supreme Court’s decision in Rent-A-Center, West,Inc. v. Jackson, 130 S. Ct. 2772 (2010). This case doesnot support the Bank’s position that the issue ofarbitrability is for the arbitrator.

The issue in Rent-A-Center was whether under theFAA, a district court may decide a challenge to acontract as unconscionable where the agreementexpressly delegated that authority to the arbitrator.Rent-A-Center, supra, 130 S. Ct. at 2775. RespondentJackson had sued his former employer, Rent-A-Center,for discrimination, but as a condition of employment,he had signed an agreement that precluded him frompursuing his claims in court. Id. at 2775. Theagreement gave the arbitrator the exclusive authorityto resolve any dispute concerning the enforceability of

App. 26

the agreement.19 Id. The District Court granted Rent-ACenter’s motion to compel arbitration, but a dividedpanel of the Ninth Circuit reversed in part, holdingthat “the threshold question of unconscionability is forthe court.” Id. (quoting Jackson v. Rent-A-Center West,Inc., 581 F.3d 912, 917 (9th Cir. 2009)). The SupremeCourt reversed, holding that, absent a specific challengeto the arbitration provision itself, the court must treatthis delegation provision as valid under § 2 of the FAAand leave the challenge to the validity of the agreementas a whole to the arbitrator.20 Id. at 2779. Thus, Rent-A-Center suggests a different outcome had petitionerpreserved a specific challenge to the provisiondelegating arbitrability to the arbitrator. See id. at2779-80; see also Prima Paint, supra, 388 U.S. at 403-04; Keeton, supra, 987 A.2d at 1122.

Unlike petitioner in Rent-A-Center, the Districtdirects one of its challenges to the validity of thearbitration clause itself. The District argues that itnever entered an agreement to arbitrate any contract-related dispute because no authorized agent for theDistrict had authority to sign such an agreement.Therefore, the District’s reliance upon Rent-A-Center is

19 The agreement provided that “[t]he Arbitrator, and not anyfederal, state, or local court or agency, shall have exclusiveauthority to resolve any dispute relating to the interpretation,applicability, enforceability or formation of this Agreementincluding, but not limited to any claim that all of any part of theAgreement is void or voidable” Rent-A-Center, supra, 130 S. Ct. at2775.

20 Petitioner challenged specifically the delegation provision for thefirst time in the Supreme Court, and therefore, the Court wouldnot consider it. Rent-A-Center, supra, 130 S. Ct. at 2781.

App. 27

well-placed. In Rent-A-Center, supra, the SupremeCourt stated that where a party challenges theagreement to arbitrate at issue under § 2 of the FAA,then the court must decide the issue. Id. at 2778. Manyappellate courts, including this court, have held that itis for the court, rather than an arbitrator, to decide thevalidity of the arbitration clause. See Keeton, supra,987 A.2d at 1122 (citing Hercules & Co. v. Shama Rest.Corp., 566 A.2d 31, 39 (D.C. 1989); Nagrampa v.MailCoups, Inc., 469 F.3d 1257, 1263-64 (9th Cir. 2006)(en banc); and Burden v. Check Into Cash of Ky. LLC,267 F.3d 483, 491 (6th Cir. 2001)) (holding that it wasfor the court to decide the validity of an arbitrationclause itself in a form contract.). Likewise, in thepresent case, it was for the court to determine whetherthe District, through authorized agents, ever agreed tobe bound by the arbitration provision. Unless theDistrict agreed to arbitration, it cannot be forced tohave its dispute, including questions of arbitrability,heard in a private forum. Therefore, the trial courtproperly considered in the first instance the District’schallenge to the arbitration provision under thecircumstances presented here.

The Bank also argues that, insofar as the District’sposition is that the agreement containing thearbitration provision is superseded by subsequentagreements, its challenge is to the contract as a whole,and therefore, must be resolved by the arbitrator. Itcontends that to the extent that the trial court reliedupon the merger clause in the 2005 contract toinvalidate the 2000 Corporate Resolution authorizingvarious District employees to act on its behalf, “itimpermissibly operates to invalidate the underlyingTreasury Booklet and Deposit Agreement as a whole

App. 28

and, therefore, the issue of contract validity shouldhave been submitted to arbitration.” The Districtresponds that because the validity of the post-2005contracts that the Bank alleges the District enteredturns on whether the person who signed lackedauthority to bind the District, resolution by the court isappropriate.

For this argument, the Bank relies upon casesholding that challenges to the validity of the contractas a whole are for the arbitrator to decide. Theseinclude: Buckeye, supra, 546 U.S. at 449 (reaffirmingthat in both federal and state courts, “a challenge tothe validity of the contract as a whole, and notspecifically to the arbitration clause, must go to thearbitrator.”); Rent-A-Center, supra, 130 S. Ct. at 2779(requiring for court intervention that the challenge bedirected to the agreement to arbitrate itself and leavingthe challenge to the agreement as a whole to thearbitrator); Prima Paint Corp., supra, 388 U.S. at 403-04 (challenges to the arbitration agreement itself go tothe court, while challenges to the entire contract ofwhich arbitration is a part are for the arbitrator); seealso Menna v. Plymouth Rock Assurance Corp., 987A.2d 458, 465 n.30 (D.C. 2010) (noting that the validityof the contract with an arbitration clause is for thearbitrator unless the challenge is directed specificallyto the validity of the arbitration clause itself under theDistrict’s Revised Uniform Arbitration Act).21 TheBank contends that resisting arbitration on the groundthat the agreement in which the arbitration provisionis found is superseded by later agreements is

21 D.C. Code §§ 16-4401 to -4432 (Supp. 2009).

App. 29

tantamount to contesting the contract as whole, andthus, the principle from the cases it cites applies torequire consideration by the arbitrator.

The District acknowledges the general principlesextracted from these cases. However, it contends thatwhere the issue turns on whether the person whosigned the contract lacked authority to commit theprincipal, judicial review is appropriate, a pointreferenced in Buckeye, supra, which the District cites.In Buckeye, the Supreme Court considered whether acourt or an arbitrator should decide the claim that thecontract containing an arbitration provision was voidbecause it violated state lending and consumer-protection laws. Buckeye, 546 U.S. at 442. Reversingthe Florida Supreme Court, the Court held that thischallenge to the validity of the contract as a whole wasfor the arbitrator. Id. at 446. While reaffirming thisgeneral principle and finding it to be applicable inBuckeye, the Supreme Court also stated that

[o]ur opinion . . . does not speak to the issuedecided in the cases . . . which hold that it is forthe courts to decide whether the alleged obligorever signed the contract, . . . [or] whether thesignor lacked authority to commit the allegedprincipal, Sandvik AB v. Advent Int’l Corp., 220F.3d 99 (C.A. 3 2000);22 Sphere Drake Ins. Ltd.

22 In Sandvik, the Third Circuit affirmed the District Court’sdenial of a motion to compel arbitration where the other partyclaimed that the agent who signed the agreement lacked authorityto sign it and so notified Sandvik. Sandvik, supra, 220 F.3d at 101.The court held that when the very existence of the agreement was

App. 30

v. All Am. Ins. Co., 256 F.3d 587 (C.A. 7 2001))23

. . . .

Buckeye, 546 U.S. at 444 n.1. This is the essence of theDistrict’s challenge here. It contends that it neveragreed to arbitration because its 2005 contract did notprovide for it and none of its employees wereauthorized to bind the District to arbitration. Thus, weconclude that the trial court was the proper forum inwhich to determine whether the District, through itsduly authorized agent, ever agreed to arbitration.

IV. Merits Analysis

A. Standard of Review and Generally Applicable Legal Principles

The court reviews de novo an order denying amotion to compel arbitration. Fleetwood Enter. Inc. v.Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (citingWebb v. Investacorp, Inc., 89 F.3d 252, 257 (5th Cir.

disputed, the district court properly refused to order arbitrationuntil it resolved the threshold question of whether the arbitrationagreement exists. Id. at 111.

23 In Sphere Drake, the Seventh Circuit held that whether a brokerhad authority to bind Sphere Drake on reinsurance contractscontaining an arbitration provision was appropriate for resolutionby the court. Sphere Drake, supra, 256 F.3d at 592. The courtdistinguished the Supreme Court’s decision in Prima Paint inwhich the Supreme Court held that it was for the arbitrator toresolve a claim of fraud in the inducement of the contract. Id. at590. It noted that in Prima Paint, the parties actually reached anagreement, while in Sphere Drake, whether there ever was anagreement was the issue, and arbitration is contractual. Id. at 590-91.

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1996)); see also Mausurovsky, supra note 11, 687 A.2dat 202 (citation omitted) (reviewing denial of a motionto compel arbitration under the de novo standard).When the trial court sits as the trier of fact, we reviewits factual findings under the “clearly erroneous”standard. Psaromatis v. English Holdings, I, L.L.C.,944 A.2d 472, 481 (D.C. 2008) (citations omitted). Weaccord the trial court’s factual findings considerabledeference, and we will not reverse them unless plainlywrong or without evidentiary support. Id. (citing D.C.Code § 17-305 (a) (2001)) (providing that for non-jurycases, “the judgment may not be set aside except forerrors of law unless it appears that the judgment isplainly wrong or without evidence to support it.”).Thus, when the facts lend themselves to more than oneinterpretation, this court defers to the trial court’sjudgment. Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc) (citations omitted). This court reviewsthe trial court’s legal conclusions de novo. Chibs v.Fisher, 960 A.2d 588, 589 (D.C. 2008) (citing D.C. Code§ 17-305 (2001)).

In reviewing a decision to compel arbitration underthe Federal Arbitration Act, we consider first whetherthe parties had an agreement to arbitrate the dispute.Fleetwood Enter., supra, 280 F.3d at 1073 (citingMitsubishi Motors Corp. v. Soler Chrysler-Plymouth,Inc., 473 U.S. 614, 62 (1985)) (citation omitted). Wemake this determination based on ordinary state-lawcontract principles. Id. (citing First Options of Chicago,supra). The FAA does not require parties to arbitratea dispute unless they have agreed to do so. Volt Info.Sciences, Inc. v. Bd. of Trustees of Leland StanfordJunior Univ., 489 U.S. 468, 478 (1989). If it isdetermined that the parties had a valid agreement to

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arbitrate, then we consider next whether the parties’dispute falls within the scope of their agreement.Fleetwood Enter., 280 F.3d at 1073 (citing Webb v.Investacorp, 89 F.3d 252, 258 (5th Cir. 1996)).

The Bank argues that, in performing our de novoreview, we must consider the national policy favoringarbitration. However, as the District points out, “th[e]federal policy favoring arbitration does not apply to thedetermination of whether there is a valid agreement toarbitrate between the parties; instead ‘[o]rdinarycontract principles determine who is bound.’” FleetwoodEnter., supra, 280 F.3d at 1073 (quoting Daisy Mfg.Co., Inc. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994))(other citation omitted); see also Granite Rock Co. v.Int’l Bd. of Teamsters, 130 S. Ct. 2847, 2859-60 (2010)(holding the presumption in favor of arbitrationapplicable only “where it reflects, and derives itslegitimacy from, a judicial conclusion that arbitrationof a particular dispute is what the parties intendedbecause their express agreement to arbitrate . . . [is]best construed to encompass the dispute.”); accord,Masurovsky, supra note 11, 687 A.2d at 205. InMasurovsky, this court rejected an argument similar tothe Bank’s argument here, concluding that the “initialdetermination whether a ‘valid arbitration agreement’exists must be determined apart from the presumption[in favor of arbitration.]” Id. In reaching thisconclusion, we relied upon the Supreme Court’sreiteration of the principle that in deciding whetherparties have agreed to arbitrate, courts shouldgenerally apply state law contract principles and itsomission of any suggestion that these principles shouldbe superseded by the federal presumption. Id. (citingFirst Options of Chicago, supra, 514 U.S. at 938).

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Consistent with these established principles, weconclude here that the presumption in favor ofarbitration attaches only after the court finds initiallythat a valid agreement to arbitrate exists. Id. Withthese principles in mind, we turn to consideration ofwhether the parties agreed to arbitrate the dispute.

B. Contract Issues

The Bank argues that it had a contractualagreement with the District to arbitrate claims inNorth Carolina. It contends that officials in the Officeof the Chief Financial Officer (OCFO) agreed to theterms set forth in its Treasury Services Booklet whichincluded a provision for arbitrating disputes related tothe Controlled Disbursement Account. On appeal, theDistrict argues, as it did in the trial court, that therewas no agreement to arbitrate contract or fraud claimsbecause OCFO employees lacked actual authority toenter such agreements by reason of provisions in thePPA. The trial court agreed with the District’s position,ruling that at the times relevant to the controversy,OCFO officials lacked the authority under the PPA toagree to arbitration in North Carolina. Further, thetrial court concluded that the 2005 contractincorporating the PPA evidenced the parties’ intent toadhere to the PPA in its dealings with the Bank. Thecourt also found that the 2005 contract provisionsgoverning dispute resolution and authority to modifythe contract superseded any dispute resolution orforum selection clauses previously agreed upon by theparties. The Bank challenges each of these rulings.

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1. Scope of Authority of OCFO Employees

Contrary to the trial court’s ruling and the District’sposition, the Bank argues that the OCFO wasauthorized to agree to arbitrate the District’s claims.The District responds that its employees, includingthose in the OCFO, who were bound by the PPA, lackedauthority to agree to arbitrate contract claims andclaims involving fraud.24

The District relies for its argument principally uponthe PPA statute and this court’s decision in District ofColumbia v. Greene, 806 A.2d 216 (D.C. 2002), in whichthis court addressed a similar issue. In Greene, VerizonSouth claimed that it had an agreement with theDistrict to submit contract disputes to arbitration,while the District claimed that it did not because itcould not agree to arbitration under the PPA. Greene,806 A.2d at 218. In determining whether to enjoinarbitration until the matter was resolved by theContract Appeals Board (CAB), this court construedapplicable provisions of the PPA and determined thatthe District was likely to prevail on the merits of itsargument that its employees could not agree toarbitration under that PPA. Id. 220-22. In reachingthis conclusion, this court observed that the PPAplainly established the CAB as the exclusive hearingtribunal for determining the contract claims at issue inthe case. Id. at 220. The court found persuasive thefollowing provisions of the PPA, which are relevant tothe issues we address here:

24 For purposes of this appeal, the District does not contend that itscontracting officers lack authority to agree to arbitration as ageneral proposition.

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D.C. Code § 2-308.03 (a)(1) states that . . . “[a]llclaims by the District government against acontractor arising under or relating to a contractshall be decided by the contracting officer . . . .”In like fashion § 2-308.05 (a) provides that “[a]llclaims by a contractor against the Districtgovernment arising under or relating to acontract shall be . . . submitted to thecontracting officer for a decision.” In § 2-309.03(a), the statute goes on to declare that“[t]he [Contract Appeals] Board shall be theexclusive hearing tribunal for, and shall havejurisdiction to review and determine de novo: . . .(2) Any appeal by a contractor from a finaldecision by the contracting officer on a claim bya contractor, when such claim arises under orrelates to a contract; and (3) Any claim by theDistrict against a contractor, when such claimarises under or relates to a contract.”

Greene, 806 A.2d at 220 (citing the quoted sections).

Interpreting these and other provisions of the PPA,this court concluded in Greene that the PPA, in effect,withheld from the District’s contracting officers thepower to agree to arbitration by specifying the mannerin which the District may procure property, suppliesand services25 and designating the CAB as the solehearing tribunal for resolution of contract disputes.Greene, 806 A.2d at 222. Also pertinent to the court’sdecision, under local contract law, a contracting officercannot obligate the District to terms that exceed his or

25 See D.C. Code § 2-301.01.

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her actual authority. Id. at 222 (citing Coffin v. Districtof Columbia, 320 A.2d 301, 303 (D.C. 1974)). Thus,here, as in Greene, District employees or entitiessubject to the PPA would have had no authority toagree to a dispute resolution procedure different thanthe one specified by law. The general rule is thatpersons contracting with a municipal corporation musttake notice of the nature and extent of its agent’sauthority. Id. at 222 and 222 n.7 (citing Chamberlainv. Barry, 606 A.2d 156, 159 (D.C. 1992), and Coffin, 320A.2d at 303 (quoting 10 McQuillan MunicipalCorporations § 29.04 at 219-22 (3d ed. 1966)). Thus, theBank was bound to note any statutory limitation on theauthority of those in the District with whom itcontracted.

To counter these authorities, the Bank argues thatthere is no statutory provision specifically precludingthe OCFO from agreeing to arbitrate. This argumentwas made and rejected in Greene. As this courtexplained in that case, this “argument is difficult, if notimpossible, to square with the language of § 2-309.03(a) making the CAB ‘the exclusive hearing tribunal’ forclaims of the kind enumerated.” Greene, 806 A.2d at220 (citation omitted). Thus, contracting officers whowere bound by the PPA did not have authority to agreeto resolve contract disputes in another forum inanother state.

We find unpersuasive the Bank’s assertion thatGreene is not supportive of the District’s positionbecause it involved consideration of injunctive reliefrather than a decision on the merits of the claim. Indetermining whether to grant this extraordinaryremedy, the court had to decide whether there was a

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substantial likelihood that the moving party wouldprevail on the merits. See Greene, supra, 806 A.2d at219-20 (citing District of Columbia v. Grp. Ins. Admin.,633 A.2d 2, 21 (D.C. 1983) (quoting Wieck v.Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)). Thisrequired the court to address squarely the samequestion raised here, i.e., whether the PPA withheldauthority from its contracting officers to agree toarbitration. In doing so, the court had to construe thePPA statute before deciding whether the District waslikely to prevail on its claim. Thus, we agree thatGreene is good authority for the District’s position here.Moreover, we are persuaded by its statutory analysis ofthe issue.

Next, the Bank argues that the OCFO is exemptfrom PPA provisions regarding contracting authority.It contends that D.C. Code § 2-301.04 (a) andsubsequent Congressional enactments confirm theindependent authority of the OCFO to contract andtherefore to agree to arbitration.26 The Districtresponds with authorities supporting its claim that theOCFO has always been bound by the PPA.

The section of the Code upon which the Bank reliesfor its exemption argument reads in pertinent part asfollows:

26 The Congressional actions referenced by the Bank are: Districtof Columbia Appropriations Act, 2006, 109 Pub. L. No. 115, § 132,119 Stat. 2508, 2522 (2005); Continuing Appropriation Resolution2007, Pub. L. No. 109-289, § 127(b), 120 Stat. 1311, 1316 (2006);H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat. 2642 (2006); H.J. Res.102, 109 Pub. L. No. 383, 120 Stat. 2678 (2006).

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. . . [the PPA] shall apply to all departments,agencies, instrumentalities, and employees ofthe District government . excluding . . ., and (tothe extent described in § 1-204.26) the Office ofthe Chief Financial Officer of the District ofColumbia . . . .

D.C. Code § 2-301.04 (a) (2001) (“2005 exemption”).27

However, as the District points out, § 2-301.04 (a)’sexemption is subject to the limitation forth in § 1-204.26. Although § 1-204.26 provided for the CFO tocarry out procurement of goods and services for theOCFO through an office independent of the ChiefProcurement Officer (CPO), it made the OCFO subjectto the same procurement provisions applicable to theCPO. See D.C. Code § 1-204.26.28 Thus, while § 2-301.04 (a) provided the OCFO with independentcontracting authority, it made it subject to the PPA’sprocurement provisions to the same extent as the CPO.The Bank argues that such an interpretation would

27 This provision was repealed effective April 8, 2011. D.C. Law 18-371, § 1201(a).

28 D.C. Code § 1-204.26 provides in pertinent part as follows:

The Chief Financial Officer shall carry out procurement ofgoods and services for the Office of the Chief FinancialOfficer through a procurement office or division whichshall operate independently of, and shall not be governedby, the Office of Contracting and Procurement . . . or anysuccessor office, except the provisions applicable undersuch unit to procurement carried out by the ChiefProcurement Officer established by § 2-301.05 or anysuccessor office shall apply with respect to the procurementcarried out by the Chief Financial Officer’s procurementoffice or division. (Emphasis added.)

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render the exclusion in § 2-301.04 (a) meaningless,contrary to the rule of statutory construction requiringthat effect be given to each statutory provision, absentexpress legislative intent to the contrary. It contendsthat to give effect to both statutes, §1-204.26 must beinterpreted to authorize the OCFO to procure goodsand services independent from the PPA except when itsprocurement is carried out by the OCFO’s ChiefProcurement Officer.29

We have no quarrel with the Bank’s recitation of therule of statutory construction;30 however, its applicationof the rule here is flawed. Both § 2-301.04 (a) and § 1-204.26, referenced therein, can be given effect withoutone defeating the purpose of the other. While § 2-301.04 (a) provided for independent contractingauthority for the OCFO, § 1-204.26 simply requiredthat in exercising that authority, the OCFO adhere tothe same statutory procurement requirements bywhich the District’s CPO was bound. Thisinterpretation, persuasively urged by the District, isconsistent with the plain meaning of the statutes. SeeBoyle v. Giral, 820 A.2d 561, 568 (D.C. 2003) (settingforth the principle that we look first to the plain

29 The Bank relies upon the September 25, 2000 and March 6, 2006TSB Authorizations because they were not carried out by OCFO’sChief Procurement Officer.

30 See Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (quotingMorton v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutesare capable of co-existence, it is the duty of the courts, absent aclearly expressed congressional intention to the contrary, to regardeach as effective.”)); see also Abadie v. District of Columbia, 843A.2d 738, 742 (D.C. 2004) (stating that “[i]f related statutesconflict, we must reconcile them”). (Citation omitted).

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meaning of a statute in interpreting it, read in light ofthe statute as a whole) (citation omitted). There isnothing in the statute that suggests, as the Bankcontends, that District officials in the OCFO’s Office ofFinance and Treasury, as opposed to those in theProcurement Office, were at liberty to ignore therequirements of the PPA.31 In any event, the parties’2005 contract, hereinafter discussed, incorporated thePPA, and thus, as the trial court determined,“evidence[d] the intent of the OCFO to adhere to thePPA with respect to its dealings with the [Bank].”

This court’s decision in Abadie, supra, 843 A.2d at738, relied upon by the District, supports its argumentthat the OCFO was subject to the PPA. In Abadie, thiscourt concluded that, with limited, specified exceptions,the PPA applied to the OCFO during “control years.”Id. at 745-46.32 The court noted in Abadie that § 2-

31 The 2000 and 2006 TSB Authorizations were executed byDistrict Officials in the OCFO’s Office of Finance and Treasury,acting under a 2000 corporate resolution. The Bank contends thatthese particular officials were not bound by the PPA.

32 The Procurement Reform Amendment Act of 1996 (effectiveApril 1997) (Reform Act) exempted the OCFO from provisions ofthe PPA during control years, and required the OCFO to “adopt . . .the procurement rules and regulations adopted by the District ofColumbia Financial Responsibility and Management AssistanceAuthority [Control Board].” D.C. Code § 2-301.04 (c) (2001). Acontrol year is “any fiscal year for which a financial plan andbudget approved by the [Control Board] . . . is in effect, andincludes Fiscal Year 1996.” D.C. Code § 47-393 (4) (2005). InAbadie, supra, this court considered and interpreted severalstatutory provisions related to its decision including those relatedto the OCFO and the PPA. See Abadie, 843 A.2d at 741, 742-44.

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301.04 (a), which sets forth governmental entitiesexempt from the PPA, did not include the OCFO,although it did list the Control Board for exemption. Id.at 743. Consistent with the legislative history and rulesof statutory interpretation, this court held in Abadiethat the OCFO’s exemption for control years appliedonly to the types of contracts listed in the sentence thatimmediately preceded it, i.e., those for professionalservices of “accountants, lawyers, and other experts.”Id. at 745.

The Bank argues that even if Abadie could beconstrued as subjecting the OCFO to the PPA, itsholding was rejected by subsequent Congressionalenactments, specifically, the District’s 2006Appropriations Act, which became law on November30, 2005 (effective retroactively from April 1997), threeextensions of the 2005 exemption, and permanentcodification of the exemption in D.C. Code § 2-301.04.The District responds that there is no evidence thatCongress considered or intended to overrule Abadieand that the 2006 Appropriations Act did not exemptthe OCFO from the dispute resolution provisions of thePPA or render ineffective the terms of the parties’ 2005contract incorporating the PPA that was executedbefore enactment of the statute.

The 2006 Appropriations Act provided that

[t]he entire process used by the Chief FinancialOfficer to acquire any and all kinds of goods,works, and services by any contractual means. . . shall be exempt from all of the provisions ofthe District of Columbia’s Procurement PracticesAct: Provided, That provisions made by this

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subsection shall take effect as if enacted in D.C.Law 11-259 [(the 1996 Procurement ReformAmendment Act)] and shall remain in effectuntil September 30, 2006.

District of Columbia Appropriations Act, 2006, Pub. L.No. 109-115, § 132, 119 Stat. 2396, 2522 (2005).33 Whilethe 2006 Act exempted the OCFO from the PPA withrespect to the acquisition of goods and services bycontract, it did not address the administration of anycontract entered or the resolution of disputes arisingtherefrom covered by sections of the PPA. To thatextent, it left intact other provisions of the PPAgoverning contract administration. Neither the plainlanguage of these enactments nor the legislativehistory cited by the Bank supports its argument thatCongress intended to overrule Abadie.34 Whenoverruling court decisions, Congress has been explicitin the past.35

33 This exemption was extended three times through February 15,2007. See Continuing Appropriations Resolution 2007, Pub. L. No.109-289, § 127 (b), 120 Stat. 1311, 1316 (2006) (extension through11/17/06); H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat 2642, 2642(2006) (extension through 12/8/06); H.J. Res. 102, 109 Pub. L. No.383, 120 Stat. 2678, 2678 (2006) (extension through 2/15/07).

34 Reference is made to H.R. Conf. Rep. 109-307 (2005), 205 WL3131557: S. Rep. 109-109 (2005) (2005), reprinted in 2006U.S.C.C.A.N. 1260.

35 See, e.g., Molovinsky v. Fair Emp’t Council of GreaterWashington, Inc., 683 A.2d 142, 148 n.11 (D.C. 1996) (Noting that“[t]he legislative history makes clear that Congress specificallyintended to overrule Luck [v. United States, 121 U.S. App. D.C.151, 348 F.2d 763 (1965)], rejecting the Luck rule as ‘absolutely

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The District argues that the process used to acquirethe Bank’s services had concluded before this law wasenacted. Although this provision was made retroactiveto 1997, the District argues that the 2006 Act did notinvalidate the parties’ 2005 agreement to be bound bythe PPA, as the Bank suggests. As it points out, the“laws in effect at the time of the making of a contractform a part of the contract ‘as fully as if they had beenexpressly referred to or incorporated in its terms.’”Double H. Hous. Corp. v. Big Wash, Inc., 799 A.2d1195, 1199 (D.C. 2002) (quoting Farmers & MerchantsBank of Monroe v. Federal Reserve Bank of Richmond,262 U.S. 649, 660 (1923)) (other citation omitted);accord, Akassy v. William Penn Apts. Ltd. P’ship, 891A.2d 291, 300 (D.C. 2006). In this case, the partiesspecifically incorporated into the 2005 contract thePPA, the law in effect at the time.

The District contends that the PPA is even clearerin precluding OCFO employees from agreeing toarbitrate claims involving fraud. While the PPAauthorized contracting officers to resolve contractdisputes (see D.C. Code § 2-308.03 (a)(1) (2006 Repl.)),it did “not authorize the contracting officer to settle,compromise, pay or otherwise adjust any claiminvolving fraud.” D.C. Code § 2-308.03 (a)(4) (2006

unworkable.’ H.R. Rep. No. 91-907, [91st Cong., 2d Sess. 62, 63(1970)]”; Brown v. United States, 518 A.2d 446, 447-48 n.3 (D.C.1986) (referencing legislative history reflecting Congressionalintent to overrule definition of a term in a particular case as reflected in H.R. Rep. No. 907, 91st Cong. 2d Sess. 62 (1970)).

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Repl.)).36 The District argues that this expressprohibition precluded a contracting officer for theDistrict from agreeing to arbitration of claims involvingfraud.

A preliminary question raised by the District’sposition is whether an agreement to arbitrate a disputefalls within the parameters of these PPA prohibitions.The answer depends to some extent upon the meaningof the term “arbitration.” This court has observedpreviously that The Federal Arbitration Act “is silenton the definition of ‘arbitration.’”37 See WashingtonAutomotive v. 1828 L St. Assocs., 906 A.2d 869, 875(D.C. 2006); see also Harrison v. Nissan Motor Corp. InU.S.A., 111 F.3d 343, 350 (3d Cir. 1997) (noting thatthe FAA does not define “arbitration,” and that “courtsand commentators have struggled to do so.”). Indetermining whether a certain appraisal processconstituted an arbitration under the FAA, the TenthCircuit noted that “[c]entral to any conception of classicarbitration is that the disputants empowered a thirdparty to render a decision settling their dispute.” SaltLake Tribune v. Mgmt. Planning, 390 F.3d 684, 689(2004) (citation omitted). Also essential to renderingthe process an arbitration is that the third party’sdecision will settle the dispute. Id. at 690 (citationomitted). In defining arbitration in Harrison, supra,the court stated, “[a]lthough it defies easy definition,

36 D.C. Code § 308.03 was repealed effective April 8, 2011, D.C.Law 18-371, § 1201(a).

37 Similarly, this court noted that the D.C. Arbitration Act did notdefine the term “arbitration.” Washington Automotive, supra, 906A.2d at 875.

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the essence of arbitration . . . is that, when the partiesagree to submit their disputes to it, they have greed toarbitrate these disputes through to completion.” 111F.3d at 350. Dictionary definitions include thesedescribed elements, including binding and finalsettlement or resolution of a dispute by a designatedthird party.38 The PPA precludes contracting officersfrom settling or adjusting disputes involving fraud.When the government is a party to a contract, itsrepresentative must have actual authority in order tobind the government to it. See Hanlin v. United States,316 F.3d 1325, 1328 (Fed. Cir. 2003) (setting forthactual authority as an element of proof required toprove an express or implied-in fact contract with thegovernment); accord, City of Cincinnati v. UnitedStates, 153 F.3d 1375, 1377 (Fed. Cir. 1998). It followsrationally that a government representative cannotdelegate to another actual authority that he or she doesnot possess. In short, contracting officers bound by thePPA cannot agree to settle, compromise or otherwiseadjust fraud claims, and they cannot delegate to othersthe authority to do so. Thus, we agree with the Districtthat the PPA withheld authority from OCFO employeesto agree to arbitrate fraud claims as well as contract

38 For example, arbitration is defined as “[a] method of disputeresolution involving one or more neutral third parties who areusually agreed to by the disputing parties and whose decision isbinding.” Black’s Law Dictionary, 112 (8th ed. 2009). Webster’sThird New International Dictionary defines “arbitration” as “thehearing and determination of a case between parties incontroversy by a person or persons chosen by the parties orappointed under statutory authority instead of by a judicialtribunal provided by law.” Webster’s Third New InternationalDictionary, 110 (3d ed. 1993).

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claims. “A person making or seeking to make a contractwith a municipal corporation is charged or imputedwith knowledge of the scope of the agency’s authority.”Chamberlain v. Barry, 606 A.2d 156, 159 (1992) (citingCoffin, supra, 320 A.2d at 303).

2. Preemption

The Bank argues that even if the PPA did apply tothe OCFO, the FAA preempts state laws like the PPA.It contends that the FAA prohibits state law frominterfering with the objectives of the FAA, andtherefore, the District’s argument that the PPAwithheld authority from District officials to agree toarbitration must fail. Unquestionably, the FAA“establishes a national policy favoring arbitration whenthe parties contract for that mode of dispute resolution.”Preston v. Ferrer, 552 U.S. 346, 349 (2008) (citingSouthland Corp. v. Keating, 465 U.S. 1 (1984))(emphasis added). The FAA provides for the applicationof federal substantive law regarding arbitration in bothfederal and state courts. Id. (citing Southland, 465 U.S.at 16). Relying upon Preston, the Bank argues that thePPA’s grant of exclusive jurisdiction of FCA claims toSuperior Court and contract claims to the ContractingOfficer and the CAB is superseded by the FAA. TheDistrict counters that Preston did not involve a statutethat withheld authority from a government employeeto agree to arbitrate, but rather one that barsenforcement of otherwise enforceable arbitrationagreements. The District argues that the former ispermissible, while the latter is not. The District has thebetter argument on this point.

In Preston, there was no dispute that the partieshad a written agreement providing for arbitration. The

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Supreme Court held that “when parties agree toarbitrate all questions arising under a contract, statelaws lodging primary jurisdiction in another forum,whether judicial or administrative, are superseded bythe FAA.” Id. at 349-50 (emphasis added). Preston,claiming fees allegedly due under a contract withFerrer, sought arbitration under an arbitration clausecovering “any dispute . . . relating to the terms of [thecontract] or breach, validity, or legality thereof . . . inaccordance with the rules [of the American ArbitrationAssociation].” Id. at 350. Ferrer petitioned theCalifornia Labor Commissioner to have the contractdeclared void under the California Talent Agencies Act(TAA)39 because Preston had acted as a talent agentwithout the requisite license. Id. Although finding abasis for the exercise of jurisdiction, the LaborCommission’s hearing officer denied Ferrer’s motion tostay arbitration for lack of authority to grant suchrelief. The Los Angeles Superior Court denied Preston’smotion to compel arbitration, and the California Courtof Appeals affirmed, holding that the TAA vests“exclusive original jurisdiction” over the dispute in theLabor Commissioner. The California Supreme Courtdenied review, and the Supreme Court grantedcertiorari to determine whether the FAA overridesstate law vesting initial adjudicatory authority in astate administrative agency. The Supreme Courtdetermined that the TAA conflicts with the FAA’sdispute resolution mechanism in that (1) it grantedexclusive jurisdiction to the Labor Commissioner todecide an issue that the parties agreed to arbitrate, and(2) it imposed prerequisites to enforcement of the

39 Cal. Lab. Code Ann. § 1700 et seq. (West 2003 and Supp. 2008).

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arbitration agreement not applicable to contractsgenerally. Id. at 356. Therefore, the Supreme Courtheld that the FAA superseded state law (the TAA) andthat pursuant to the parties’ contract, their rights mustbe decided in an arbitral forum. Id. at 352.

There is an important difference between thecircumstances presented in Preston and thosepresented here. In this case, the PPA simply imposesstatutory restrictions on the authority of municipalemployees to agree to arbitration. It does not barenforcement of valid arbitration agreements or imposeconditions upon such agreements not applicable toother contracts. See Greene, supra, 806 A.2d at 221. Asthe court stated in Greene in addressing an analogousargument that applies here: “what [the Bank’s]argument does is to mistake the authority of a state tobar enforcement of otherwise valid arbitrationagreements — power denied the state except insofar as§ 2 [of the FAA] permits — for the authority of agovernment contracting for goods or services in its ownbehalf to refuse to agree to arbitrate disputes.” Id. TheFAA does not mandate arbitration; it requiresenforcement of privately negotiated arbitrationagreements. Id. at 222. Here, the PPA withheld fromcontracting officers the authority to bind the District toarbitration, just as any private corporation orindividual might limit an agent’s contracting authority.Therefore, we reject the Bank’s preemption argument.

3. Controlling Contractual Agreement

As previously discussed, the trial court ruled thatthe PPA, which was incorporated into the 2005contract, withheld from the CFO and OCFO officialsthe authority to agree to arbitration and forum

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selection for contract and fraud claims at the time theauthorization and agreements for Treasury Serviceswere signed. Alternatively, the trial court found thatthe parties’ 2005 contract provisions governing disputeresolution and contract modification superseded anyclauses on the subject that the Bank claims wereagreed upon previously and any provision that wouldotherwise allow District officials to agree to arbitrationin North Carolina or elsewhere. The court alsoconcluded that after execution of the 2005 contract, theDeputy CFO/Treasurer lacked authority to bind theDistrict to dispute resolution clauses in the 2008deposit agreement. The Bank argues that the trialcourt erred in its rulings because: (1) it misappliedbasic contract integration principles in holdingunenforceable the arbitration provisions in the TSBand the forum selection clauses in the DepositAgreement signed before the 2005 contract; and (2) the2005 contract cannot supersede documents containingsuch provisions signed by District officials after the2005 contract was entered.40 The Bank contends thatthe 2005 contract is partially integrated and that thearbitration clause in the TSB and the forum selectionprovisions in the Deposit Agreements operateharmoniously and must be integrated into the 2005

40 The documents the Bank references include: (1) previously andsubsequently signed Authorizations incorporating the TreasuryBooklet which contained an arbitration clause; (2) Documents inthe “Agreements/Documentation” section in its responses to the2002 and 2005 RFPs; and (3) Treasury Booklets that it contendedwere sent with its responses to the 2002 and 2005 RFP. However,the trial court found as fact that the Treasury Booklet was notincluded in these two submissions.

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contract. Alternatively, it argues that subsequentlyexecuted agreements control dispute resolution.

a. Effect of the 2005 Contract on Prior Agreements

“When parties to a contract have executed acompletely integrated written agreement, it supersedesall other understandings and agreements with respectto the subject matter of the agreement between theparties, whether consistent or inconsistent, and isviewed as the sole expression of the parties’ intent.”Masurovsky, supra, 687 A.2d at 202 (citing HowardUniv. v. Good Food Servs., Inc., 608 A.2d 116, 126-27(D.C. 1992)) (other citation omitted). A partiallyintegrated agreement is one “where the writingrepresents the agreement of the parties with respect tothe matters stated therein, but there may be additionalconsistent terms.” Id. (citing Good Food Servs., 608A.2d at 126)) (other citation omitted). Whether anagreement is completely or partially integrated is apreliminary question of fact for the trial court. Id. at126 (citing Ozerol v. Howard Univ., 545 A.2d 638, 641(D.C. 1988)). In making its factual inquiry, the trialcourt must consider the intent of the parties when theyentered the agreement as derived from “the conductand language of the parties and the surroundingcircumstances.” Id.

In this case, before deciding that the parties’ 2005contract rendered ineffective any prior authorizationsor agreements for arbitration and forum selection, thetrial court held an evidentiary hearing, made factualfindings, and considered the factors essential to itsdetermination as set forth in our case law. See, e.g.,Good Food Servs., supra, 608 A.2d at 126 (citationomitted). The trial court concluded that the “parties’

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written contract containing a merger clause, theconduct of the parties and the surroundingcircumstances, evaluated as a whole, weigh heavily infavor of the 2005 contract’s categorization as a fullyintegrated document with respect to dispute resolutionand authority to modify.” The court also stated thateven if the 2005 contract could be characterized aspartially integrated, it would supersede anyinconsistent terms in prior agreements. See id.However, the trial court also found that the parties didnot intend for the 2005 contract to invalidatedocuments signed by OCFO and OFT officials to theextent that they allowed the account to remain openand maintained by authorized individuals.

The trial court’s ultimate conclusion that the 2005contract is a completely integrated document withrespect to dispute resolution and authority to modify issupported by the record and applicable law. First, the2005 contract contains a merger clause that states,“This contract, including specifically incorporateddocuments, constitutes the total and entire agreementbetween the parties. All previous discussions, writings,and agreements are merged herein.” The presence of amerger clause, although not conclusive, is a significantfactor indicating that the parties intended the 2005contract to be a complete expression of the termsagreed upon. Good Food Servs., supra, 608 A.2d at 127(II Farnsworth on Contracts § 7.3, at 204-07 (1990)).Second, specific items or documents intended to beincluded in the contract are listed. A listing of extrinsicitems that form a part of the contract is a factortending to support the conclusion that a contract iscompletely integrated. Hercules & Co. v. Shama Rest.Corp., 613 A.2d 916, 928 (D.C. 1992) (holding that this

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factor, along with two merger clauses, established“beyond peradventure” that the contract wascompletely integrated). The trial court found that theTSB containing an arbitration clause, aside from notbeing enumerated as a contract document, was notincluded in the Bank’s response to the 2002 RFP or its2005 best and final offer.41 This factual determinationis supported by the evidence and not clearly erroneous;therefore, we accept it. See Psaromatis v. EnglishHoldings I, L.L.C., 944 A.2d 472, 481 (D.C. 2008)(setting forth clearly erroneous standard for review ofthe trial court’s factual findings when sitting as factfinder).

Third, the trial court considered the circumstancessurrounding the making of the contract beforedetermining that it was fully integrated, specifically asto dispute resolution and modification authority. SeeGood Food Servs., supra, 608 A.2d at 126 (setting forthsurrounding circumstances as one focus of the inquiryinto whether the parties intended an agreement to becompletely integrated). Briefly stated, thesecircumstances included the OCFO’s “effort[s] to assert

41 The trial court did not credit the testimony of the Bank’s SeniorVice President Biachi that he mailed the TSB with the 2002 and2005 responses to the RFP. See Lazo v. United States, 54 A.3d1221, 1230 (D.C. 2012) (stating that this court will not redeterminethe trial court’s credibility determinations where it had theopportunity to observe the witness’ demeanor). Here, the trialcourt also found that Mr. Biachi, who signed the contract, did notfocus on the merger clause, dispute resolution clause, arbitrationor the requirements of the PPA, nor did he even know that therewas an arbitration provision in the TSB. The trial court also foundthat at no time did the parties discuss dispute resolution before theaward of the 2005 contract.

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control over the District’s finances, including its bankaccounts,” in part, by issuing the 2002 RFP.42 The trialcourt found that “[a]n important part of that endeavorwas empowering only one person to contractually bindthe District, and except for claims under the FalseClaims Act, establishing only one method of resolvingdisputes — through the Contracting Officer.” To thisend, the RFP provided that only the ContractingOfficer is authorized to make modifications or changesto the terms and conditions of the contract. The RFPfurther required that bidders include a disputeresolution provision stating that “[i]f a dispute arisesunder or relates to the contract, a claim by theContractor shall be made in writing and submitted tothe Contracting Officer for a written decision. A Claimby the District against the Contractor shall be subjectto written decision by the Contracting Officer.”Contract clauses required by the RFP also included theincorporation by reference of the PPA and applicableregulations and the laws of the District of Columbia.Except for fraud claims, the PPA provided for only oneform of dispute resolution for contract claims, i.e., thatthey be resolved by the Contracting Officer. The PPAprovides that contracting officers are “not authorize[d]. . . to settle, compromise, pay, or otherwise adjust anyclaim involving fraud.” D.C. Code § 2-308.03 (a)(4)(2006 Repl). It also provides that the District may bringa civil action in Superior Court for fraud claims. D.C.Code § 2-308.14.43

42 The trial court found that there were 1400 bank accounts whenDr. Gandhi was appointed CFO in June 2000.

43 D.C. Code § 2-308.14 is now codified at D.C. Code § 2-381.02 (a).

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The District issued an amendment to the RFP onMarch 31, 2005, but the terms and conditions relatedto dispute resolution, contract modification, andincorporation of the PPA and other laws of the Districtof Columbia remained unchanged. Consistent with theRFP’s requirements, the 2005 contract executed by theparties states in Article I that “[t]he intent of thiscontract is for a contractor to manage the disbursementaccount in accordance with the published RFP.”44 Thetrial court found that “[s]ignificantly, the TreasuryBooklet was not included as part of the [Bank’s] 2002RFP Response and the 2005 [Best and Final Offer] thatwere incorporated into the 2005 Contract that Mr.Bianchi [the Bank’s Senior Vice President] signed.”This factual finding, which is supported by theevidence, is not challenged. Given the language in thewritten contract, the conduct of the parties, and thesurrounding circumstances as found by the trial court,we discern no error in its conclusions that objectivelythe parties intended the 2005 written contract togovern their relationship related to the CDA withrespect to dispute resolution and authority to modifythe agreement and that any prior inconsistentprovisions on these subjects were superseded by the2005 contract.45 “Our jurisdiction adheres to an

44 The contract incorporated the following documents “by order ofprecedence:” Articles I through V; Contractor’s Technical Proposaland Cost Proposal; Contractor’s Best and Final Offer dated April25, 2005; and the District’s RFP.

45 See Good Food Servs., supra, 608 A.2d at 126-27 (setting forthbasis for determining the preliminary factual issue of whether theparties intended a writing to be integrated); see also Ozerol, 545A.2d at 641 (contrasting completely and partially integrated

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objective law of contracts, meaning that the writtenlanguage embodying the terms of an agreement willgovern the rights and liabilities of the partiesregardless of the intent of the parties at the time theyentered into the contract[.]” Aziken v. District ofColumbia, 70 A.3d 213, 218-19 (D.C. 2013) (internalquotation marks omitted).

The Bank argues that the trial court erred by failingto harmonize the dispute resolution provisions of the2005 contract and the TSB’s arbitration clause. Itcontends that the TSB and Deposit Agreement operateharmoniously with the 2005 contract, and thereforemust be construed together as one contract. Ininterpreting a contract, we consider the document aswhole “so as to give effect, if possible, to all of theprovisions in the contract.” Steele Found. Inc. v. ClarkConstr. Grp., 937 A.2d 148, 154 (D.C. 2007) (citingAkassy, supra, 891 A.2d at 303). Contrary to the Bank’sargument, the dispute resolution mechanism agreedupon in the 2005 contract and the prior arbitration andforum selection clauses upon which it relies cannot bereconciled or harmonized.46 As the trial court

agreements and noting that the latter may have consistent, asopposed to inconsistent, additional terms).

46 Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278 (2d Cir.),upon which the Bank relies, is distinguishable. In that case, thedistrict court determined that merger and forum selection clausesin a series of subsequently executed Pledge Agreementssuperseded a prior agreement to arbitrate disputes. Id. at 280. ThePledge Agreements had a clause providing that “all rights andremedies provided in this Agreement are cumulative and notexclusive of any provided under any other agreement or by law orin equity.” Id. at 282. The circuit court stated that in light of this

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concluded, the mechanisms for dispute resolutionagreed upon in the 2005 written contract areinconsistent with any prior arbitration and forumselection provisions calling for arbitration in NorthCarolina that the Bank contends were agreed uponprior thereto. The provisions in the 2005 contract,solicited, negotiated, and agreed upon in writing,provide that: (1) except for fraud claims, claims relatedto the parties’ contract will be decided by theContracting Officer and Contract Appeals Board; and(2) fraud claims can be pursued in a civil action in courtby the Attorney General as stated in the PPA, whichwas incorporated by reference. These provisions areentirely inconsistent with any prior agreements toarbitrate claims in North Carolina or elsewhere. Evenif the 2005 agreement is characterized as only partiallyintegrated, prior inconsistent terms with respect to thematters stated therein were superseded by the 2005contract, and therefore, they cannot control. SeeMasurovsky, supra note 11, 687 A.2d at 202 (citingGood Food, supra, 608 A.2d at 126) (other citationomitted). To the extent that provisions for disputeresolution and forum selection are referenced on banksignature cards and authorizations pre-dating theparties’ 2005 contract, for the foregoing reasons, we

clause, it would make little sense to read the merger clause todestroy prior contract relationships. Id. at 283. Consistent withNew York law, the court “read the merger clause as providing thatthe Pledge Agreements supersede any previous agreements onlyto the extent that they conflict. Id. In the case before this court, wehave no similar non-exclusive remedies provision, and the termsof the dispute resolution provisions in the written contract andprior documents conflict.

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agree with the trial court that they were superseded bythe 2005 contract and cannot be harmonized with it.

b. Effect of Subsequently Executed Documents on the 2005 Contract

Alternatively, the Bank argues that TSB andDeposit Agreements signed by OFT officials after the2005 contract was entered control.47 It contends thatfor partially integrated contracts, the most recentwriting controls or that the 2005 contract could besupplemented or modified by documents executedthereafter. The Bank takes the position that OFTofficials retained independent contracting authorityunder the 2000 Corporate Resolution and that bysigning signature cards and Authorizations, OFTemployees bound the District to the DepositAgreement’s forum selection clause and the TreasuryBooklet’s arbitration clause. The Bank argues thatthese documents either reinstated the terms of the TSBand Deposit Agreement or modified, supplemented, andamended the terms of the 2005 Contract to includethem.48 The trial court held that after execution of the

47 The Bank relies on the 2006 Authorization agreeing to be boundby the TSB, signed by Deputy Chief Financial Officer, LasanaMack, pursuant to authority provided by the 2000 CorporateResolution, and signature cards signed in 2006. The TSB providesfor arbitration in the United States, and the Deposit Agreementsprovide for actions or proceedings involving the account to bemaintained in the Banking Center maintaining the account, in thiscase North Carolina.

48 The District suggested that this court need not consider whetherOFT employees retained contracting authority after the 2005contract was executed because it did not understand the Bank’s

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2005 contract, which was extended each year up toNovember 2009, OFT officials “plainly lacked theauthority to bind the District to the dispute resolutionclauses in either the 2004 Treasury Booklet or the 2008Deposit Agreement.”

There are at least two major impediments to theBank’s suggested result on this issue. First, the RFPand the 2005 contract provided that the ContractingOfficer was the “only official authorized tocontractually bind the District.” Even assuming thatOFT officials retained some authority related tobanking services after the execution of the 2005contract, the Bank, as a party to that contract, knewthat only the Contracting Officer had authority toagree on behalf of the District to modify or vary itsterms. Even absent actual knowledge of the limitationson a government agent’s authority, as existed here,“one who contracts with a government agent isconstructively notified of the limits of that agent’sauthority, and any reliance on contrary representationscannot be reasonable.” Williams v. District ofColumbia, 902 A.2d 91, 96 (D.C. 2006) (citing Leonardv. District of Columbia, 801 A.2d 82, 86 (D.C. 2002) andGreene, supra, 806 A.2d at 222 n.7 (“persons dealingwith a municipal corporation through its agent arebound to know the nature and extent of the agent’sauthority”) (quoting Coffin, supra, 320 A.2d at 303))(other citations omitted). Put another way, the Bankknew that whatever authority other officials had tosign bank documents on behalf of the District, that

argument to be that subsequent agreements altered or modifiedthe terms of the existing contract. In its Reply Brief, the Bankclarified its position to state otherwise.

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authority did not include modification of the parties’2005 contract. Therefore, the Bank could not bind theDistrict to a modification of the dispute resolutionprovisions in the 2005 contract simply because officials,other than the authorized Contracting Officer, signedform bank signature cards and/or deposit agreementswith printed language purporting to impose differentarbitration and forum selection requirements. The trialcourt found that the individuals who signed thesecards for the District were unaware that the fine printhad arbitration and forum selection terms. Accordingto the testimony and trial court findings, they signedthe documents only for the purpose of adding orchanging signatories on the accounts without notingthe fine print. None of them intended to effect amodification of the 2005 contract. Of course, “[a] personwho signs a contract after having had an opportunityto read and understand it is bound by its provisions.”Interdonato v. Interdonato, 521 A.2d 1124, 1133 (D.C.1987) (citation omitted). However, that is not the issuehere. The determinative issue in this case is whetherthe person who signed the document had authority tobind the District government to a modification of the2005 contract. Under the terms of that contract, onlythe Contracting Officer had that authority.

Second, the 2005 contract was extended four timesafter its initial execution, finally in November 2008 andexpiring “on November 12, 2009 or the date any newcontract was executed, whichever came first.” Thiscontract’s essential terms concerning disputeresolution, incorporation of the PPA, and contractmodification remained unchanged throughout thisperiod. Therefore, to the extent that the Bank arguesthat the last executed document controls, that would be

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the 2005 contract that was extended each year throughNovember 2009. Therefore, under the Bank’smodification analysis, this contract would havecontinued to govern dispute resolution and contractmodification.

C. Challenge to the CAB’s Jurisdiction Over the Claims Asserted

Finally, the Bank argues that there is no conflictbetween the dispute resolution provisions in the 2005contract and the arbitration provision it seeks toenforce because the District’s claims are not subject tothe jurisdiction of the Contracting Officer or CAB. Itcontends that the District’s claims are either statutoryor tort claims which the Contracting Officer and CABhave no authority to resolve. The District views theBank’s argument as its recognition that byincorporating the PPA into the contract, the partiesagreed that the Contracting Officer would hearcontract claims, and the Attorney General for theDistrict could bring an FCA claim in Superior Court. Atthe same time, the District agrees with the Bank thatits claims do not fall within the provision of the 2005contract requiring that the contracting officer decidedisputes related to the contract. It contends that itsstatutory and tort claims against the Bank do not turnon the contractual relationship between the parties andthat they could have been asserted against any bankthat negotiated the fraudulent checks. Therefore, theDistrict concedes that the trial court erred in holdingthat the District’s claims related to the contract, buttakes the position that the claims should have beenresolved in Superior Court.

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Under the PPA, “[a]ll claims by the Districtgovernment against a contractor arising under orrelating to a contract shall be decided by thecontracting officer who shall issue a decision inwriting. . . .” D.C. Code § 2-308.03 (a)(1) (2001). TheContract Appeals Board had jurisdiction of “[a]ny claimby the District against a contractor, when such claimarises under or relates to a contract.” D.C. Code § 2-309.03 (a)(3) (2001). The statute limits this jurisdictionby providing that the contracting officer is notauthorized “to settle, compromise, pay, or otherwiseadjust any claim involving fraud.” D.C. Code § 308.03(a)(4) (2001). The PPA provides that the District maybring a civil action to recover damages or penaltiesagainst any person who commits specified fraudulentacts. D.C. Code § 2-308.14 (a)(1)-(9).

A claim arises under a contract “(1) where the claimultimately depend[s] on the existence of a contractualrelationship between the parties; (2) resolution of theclaim[] relates to interpretation of the contract; or (3)[a] contract-related tort claim involve[s] the sameoperative facts as a parallel claim for breach ofcontract.” Cheney v. IPD Analytics, LLC, 583 F. Supp.2d 108, 122 (D.D.C. 2008) (alteration in original)(quoting Terra Int’l, Inc. v. Mississippi Chem. Corp.,119 F.3d 688, 694 (8th Cir. 1997)) (internal quotationmarks omitted). There must be a “causal connectionbetween the claim and the contract based on rights,duties, or injury flowing from the contract.” Id. at 122(quoting Phillips v. Audio Active, Ltd., 494 F.3d 378,389 (2d Cir. 2007)) (internal quotation marks omitted).The statute does not define “related to” the contract ordistinguish between the phrases “arising under” and“related to” the contract. The definition of “related to”

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is simply “associated with” or “connected to.”49 Theremust be some nexus between the contract and theclaim asserted such that reliance on the contractingofficer’s expertise promotes a just resolution.

It is not clear on this record that the District’sclaims arise under the parties’ contract based on thedefinition extracted from Cheney, supra, 583 F. Supp.at 122. The District sued the Bank for violation of theUniform Commercial Code (Counts I and II),Negligence (Count III), Fraud (Count IV), Negligentand Intentional Breach of Fiduciary Duties (Count V),Conversion (Count VI), False Claims Act violations(Count VII),50 and Failure to Adequately Hire, Train orSupervise (Count VIII). Resolution of none of theclaims appear to concern an interpretation of thecontract, and there is no parallel breach of contractclaim. To some extent, some of the claims may dependupon the existence of a contractual relationshipbetween the parties. See Cheney, supra, 583 F. Supp. at122. Others may not. Nor do all of the claims appear

49 The American Heritage Dictionary of the English Language, 1097(William Morris, ed. 1969).

50 In Count VII of its first amended complaint, the District adoptedand incorporated the factual allegations set forth in the precedingeight counts (paragraphs 1 - 117) of its complaint as the basis forits False Act Claims under D.C. Code § 2- 308.14 (a), subsections(2) (knowingly mak[ing], us[ing] or caus[ing] to be made or used,a false record or statement to get a false claim paid or approved bythe District”), (3) (“conspir[ing] to defraud the District by gettinga false claim allowed or paid by the District”), (8) (failing todisclose after discovery a false claim to the District received as aninadvertent payment or overpayment), and (9) (knowingly failingto repay an inadvertent payment or overpayment to the District).

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on the face of the complaint to be connected to thecontract itself or require the expertise of a contractingofficer for just resolution. Further inquiry by the trialcourt appears to be necessary to make thatdetermination.

This court has held that the CAB does not havejurisdiction over a claim for professional negligence,recognizing the CAB’s position with respect to its ownjurisdiction. District of Columbia Water and Sewer v.Delon Hampton & Assocs., 851 A.2d 410, 417 n.16 (D.C.2004) (citing George A. Bass Constr. Co., CAB No. D-869 (June 10, 1991)).51 In particular, this court notedthat the CAB had stated that “‘any action based onnegligence lies not before the Board but in SuperiorCourt.’” Id. (quoting Bass Constr. Co.). More recently,the CAB has explained that it may exercise jurisdictionover claims that actually are for defective contractperformance, although asserted in the language for tortactions. In re Chief Procurement Officer (GTE South,Inc.), 2002 DCBCA LEXIS 23, at *3-4 n.2. Although theCAB dismissed the tort claims in GTE South becauseits jurisdiction is limited to contract actions, itexplained circumstances under which it had consideredcases asserted as torts, but that were actually contractclaims. Specifically, the CAB stated:

51 In Delon Hampton, an issue under consideration was whetherthe trial court abused its discretion in not referring claims forbreach of contract and professional negligence for administrativeremedy under the doctrine of primary jurisdiction. 851 A.2d at 416-17. The trial court rejected the argument because the CAB wouldhave declined to provide an administrative remedy, and thedoctrine of primary jurisdiction does not apply where noadministrative remedy exists. Id. at 417 & n.417 n.16.

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Although, at times, the Board exercisesjurisdiction over claims which are framed in thelanguage of tort actions, those cases deal withcontract performance, not torts unrelated toperformance. For example, references to“negligence” and “professional malpractice” inperformance of a contract, although soundinglike a tort, do not convert into a tort what is inessence a claim for defective performance. See,e.g., Fry & Welch Associates, P.C., CAB No. D-0821, July 31 1997, 44 D.C. 6859, 6875.

GTE South, 2002 DCBCA LEXIS 23 at *3-4 n.2.Whether the District’s claim for negligence (Count III)is in essence a claim for defective performance remainsto be determined after further inquiry by the trialcourt.

On the other hand, most of the District’s claimsappear to involve fraud perpetrated by the District’sformer employees and allegedly facilitated by the Bank.To the extent that these claims involve fraud, they areproperly pursued in court, given the PPA’s prohibitionagainst contracting officers paying, compromising,settling or otherwise adjusting any claim involvingfraud, see D.C. Code § 308.03 (a)(4), and authorizationfor the District to sue persons committing certainfraudulent acts in Superior Court for damages. SeeD.C. Code § 2-308.14 (a)(1). Interpreting a similarfederal statute, 41 U.S.C. 605(a), numerous districtcourts have held that the Government can sue indistrict court whenever fraud is at issue even if theclaim itself is not for fraud. United States v. MenomineeTribal Enterprises, 601 F. Supp. 2d 1061, 1078 (E.D.Wis. 2009) (citing United States v. Unified Industries,

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929 F. Supp. 947, 950-51 (E.D. Va. 1996); United Statesv. Rockwell Int’l Corp., 795 F. Supp. 1131, 1135 (N.D.Ga. 1992)). Similarly, the provision of the PPA lendsitself to that same interpretation.

In summary, we conclude that the District’s claimsin the remaining seven counts may not be dismissed infavor of jurisdiction before the contracting officer andthe CAB without a determination of whether thoseclaims can be properly pursued in that forum or areproperly before the Superior Court. That determinationmust be made on the basis of the nature of the claim,rather than its title. Consistent with the principles setforth in this section, the trial court must make thatdetermination with respect to each count.

For the foregoing reasons, we affirm the trial court’sdecision insofar as it holds that the parties had noagreement to arbitrate disputes in North Carolina. Weremand the case to the trial court with instructions todetermine, based on the principles enunciated in thisopinion, which counts, if any, should remain fordisposition in the Superior Court as claims involvingfraud or as claims not otherwise within the jurisdictionof the Contract Appeals Board.

So ordered.

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APPENDIX B

SUPERIOR COURT OF

THE DISTRICT OF COLUMBIA CIVIL DIVISION

Civil Action No. 08-7763 Judge Joan Zeldon

[Filed December 9, 2009] District of Columbia, )

) Plaintiff, )

)v. )

) Bank of America, N.A., et al., )

) Defendants. )

)

ORDER DENYING BANK OF AMERICA’SMOTION TO DISMISS, OR IN THE

ALTERNATIVE, STAY BASED ON FORUMSELECTION AND ARBITRATION CLAUSES

The Court has before it (1) a Motion to Dismiss, orin the Alternative, Stay Based on Forum Selection andArbitration Clauses submitted by Defendants Bank ofAmerica, N.A. and Bank of America Corporation (BOAor the Bank), which the Court treats as a Motion to

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Compel Arbitration under the Federal Arbitration Act(FAA);1 (2) Plaintiff’s Opposition; (3) BOA’s Reply;

1 The District of Columbia argues that BOA impermissibly cited toextrinsic evidence in support of its Motion to Compel Arbitration,thus converting it to a Motion for Summary Judgment and waivingits claim to arbitration. (Pl.’s Opp. at 5-7 (citing Super. Ct. Civ. R.12(b) (2009); Khan v. Parsons Global Servs., 380 U.S. App. D.C.320, 324, 521 F.3d 421, 425 (D.C. Cir. 2008).) The Court however,agrees with Bank of America that its Motion to Compel Arbitrationis not a 12(b)(6) motion, but a Motion to Compel Arbitration underthe Federal Arbitration Act. See Friend v. Friend, 609 A.2d 1137,1138-39 (D.C. 1992) (holding that “a motion seeking dismissal ofa complaint on the ground that a contract requires arbitration ofthe underlying dispute must be seen as an application forcompelled arbitration” (internal quotation marks omitted));Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 804(D.C. 1984) (“The nature of a motion is determined by the reliefsought, not by its label or caption.”). Furthermore, in order for thisCourt to fairly adjudicate BOA’s Motion, it is both proper andnecessary to consider documents outside the pleadings themselves.See Yazdani v. Access ATM, 941 A.2d 429, 432-434 (D.C. 2008)(affirming the trial court’s dismissal based on forum selectionclause cited in a Motion to Dismiss to which the ATM ServiceAgreement and an affidavit of the President and CEO of AccessATM were attached).

Plaintiff also contends that the Deposit Agreement andDisclosures and Treasury Services Terms and Conditions Bookletrelied upon by BOA contain “open-ended indemnificationprovisions that are in violation of the [District’s] Anti-DeficiencyAct, thereby rendering the entire contract void ab initio.” (Pl.’sOpp. at 9 (emphasis added) (citing D.C. Code § 47-355.01 et seq.).)However, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.440, 449 (2006), the Supreme Court held that “regardless ofwhether the challenge is brought in federal or state court, achallenge to the validity of the contract as a whole, and not

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(4) Plaintiff’s Sur-Reply; (5) BOA’s Supplemental Briefin Support of BOA’s Motion to Dismiss; (6) Plaintiff’sMemorandum of Points and Authorities in Oppositionto BOA’s Supplemental Brief; (7) Plaintiff’sSupplemental Memorandum in Opposition to BOA’sSupplemental Brief; (8) BOA’s Supplemental Reply;and (9) Plaintiff’s Sur-Reply in Opposition to BOA’sSupplemental Reply.

This dispute is a contract law professor’s dream.First, the District argues that its claims are outside thescope of the dispute resolution clauses at issue in thiscase. However, the Court rejected that argument forreasons previously stated on the record, which aresummarized in Exhibit A. With respect to BOA’sarguments that the forum available to the District isonly North Carolina, and that arbitration is required inthis dispute between the parties, the District assertsthat the parties did not agree to arbitrate in NorthCarolina (a) in light of the 2005 Contract and(b) because its officials lacked the authority to agree tothe arbitration and forum selection provisions. In thesealternative arguments, the District is attacking onlythe arbitration and forum selection clauses in the 2004Treasury Services Terms and Conditions Booklet(“Treasury Services Booklet”) and the 2008 DepositAgreement and Disclosures (“Deposit Agreement”), andthus, they are proper arguments for this Court toaddress. See Howsam v. Dean Witter Reynolds, Inc.,537 U.S. 79, 83 (2002) (“The question whether the

specifically to the arbitration clause, must go to the arbitrator.”Consequently, this Court did not consider Plaintiff’s argument thatthe entire contract is void ab initio.

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parties have submitted a particular dispute toarbitration, i.e. the question of arbitrability, is an issuefor judicial determination [u]nless the parties clearlyand unmistakably provide otherwise.” (internalquotation marks omitted) (quoting AT&T Techs., Inc.v. Commc’ns Workers, 475 U.S. 643, 649 (1986)); PrimaPaint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,403-404 (1967) (holding that Courts may addresschallenges to arbitration where the claim is “an issuewhich goes to the ‘making’ of the agreement toarbitrate”).

For the reasons given below, the Court will(1) DENY BOA’s Motion to Dismiss (i.e. “Motion toCompel Arbitration”) and (2) DISMISS all Counts ofthe First Amended Complaint (“Complaint”) relating toBOA except Count Seven (False Claims Act).

I. Background

On October 31, 2008, the District of Columbia suedBOA, Assistant Bank Manager Walter Jones, and otherindividual defendants, including presently unknownBank employees, alleging inter alia that BOA throughJones and other Bank employees, participated in aconspiracy that utilized an account the Districtmaintains with BOA, and withdrew from that accountfraudulent tax refunds, which caused the Districtdamages of more than $39,000,000. The First AmendedComplaint, dated December 12, 2008, contains eightcounts: violation of the Uniform Commercial Code(Counts One and Two); negligence (Count Three); fraud(Count Four); negligent and intentional breach offiduciary duties (Count Five); conversion (Count Six);violation of the District’s False Claims Act (CountSeven); and failure to adequately hire, train or

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supervise (Count Eight). The District seeks repaymentof the monies lost as well as treble damages andpenalties under the False Claims Act, amounting tomore than $100,000,000.

On January 16, 2009, BOA filed a Motion toDismiss, or in the Alternative, Stay Based on ForumSelection and Arbitration Clauses. See note 1, supra.The Motion has been vigorously litigated by both theDistrict of Columbia and Bank of America.

Although the District has more than thirty bankaccounts with BOA, this case involves only onecontrolled disbursement account (“CDA”) located inNorth Carolina. BOA urges the Court to find thatauthority to enter into binding arbitration agreementscontrolling this account was granted to specific Districtofficials through a Corporate Resolution signed onJanuary 6, 2000 by then-Chief Financial Officer(“CFO”) Valerie Holt. Relying upon this document,BOA contends that the District, through twoAuthorizations and Agreements for Treasury Servicesand multiple signature cards signed by various Districtofficials, agreed to “be governed by” the terms of a 2008Deposit Agreement and “to adhere to” the 2004Treasury Services Terms and Conditions Booklet. (SeeDef.’s Hr’g Ex. 7 at 1; Def.’s Hr’g Ex. 18 at 1; Def.’s Hr’gEx. 33.)

BOA contends that the claims asserted by theDistrict of Columbia in this lawsuit are subject to thearbitration clause contained in the 2004 TreasuryServices Booklet and the forum selection clause of the

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2008 Deposit Agreement.2 According to BOA, thesedocuments together form a partially integratedcontract between BOA and the District of Columbiacovering the CDA. The Treasury Booklet’s disputeresolution clause states that

[a]ny dispute or controversy concerning your useof Services described in this Booklet will bedecided by binding arbitration conducted in theUnited States of America (except as you and weexpressly agree otherwise) in accordance withthe United States Arbitration Act (Title 9, U.S.Code) under the Commercial Arbitration Rulesof the [AAA].

(Def.’s Hr’g Ex. 19 at 61.) The parties do not disputethat the CDA is a “Service” as defined by BOA’sTreasury Services Booklet. Although the forumquestion was not the main focus of filings by eitherparty, BOA argued in closing that the 2008 DepositAgreement’s forum selection clause, which applies to“any action or proceeding,” compels arbitration inNorth Carolina.

The District of Columbia contends that it neveragreed to arbitrate in North Carolina. First, it assertsthat the only binding agreement between the parties isthe fully integrated “2005 Contract” executed by theDistrict on November 13, 2005, which has been

2 The controlling document clause in the 2004 Treasury ServicesBooklet provides that the Booklet prevails over the DepositAgreement in the event of a conflict between their terms. To assistthe reader, the Court has included as Exhibit B a chronology of keydocuments relied on by the parties containing relevant terms andprovisions.

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extended four times and contains its own disputeresolution provision.3 In the alternative, the Districtargues that even if the “2005 Contract” does notconstitute the entire agreement between the parties, itis not bound by the arbitration and forum selectionprovisions because none of the individuals who signedthe Authorizations and Agreements for TreasuryServices and signature cards had authority to agree toarbitration or forum selection.

Over the course of many months, both partiessubmitted many additional documents to the Court.4

Despite—or perhaps because of—the parties’voluminous filings, it was by no means clear whatdocument(s) control this dispute. To that end, theCourt determined that an evidentiary hearing wasrequired to ascertain whether the parties actuallyagreed to arbitrate in North Carolina.5 See Masurovskyv. Green, 687 A.2d 198, 202-04 (D.C. 1996). Atnumerous status conferences prior to the evidentiaryhearing the Court asked many questions of both partiesin order to clarify their positions and to establish anadequate record in the event of an appeal.

3 The District of Columbia submitted its “2005 Contract” inpiecemeal fashion; only the first three pages were submitted untilan Order of this Court required it to be submitted in its entirety.

4 As a result of an inferior electronic document storage system,many of the documents submitted by BOA were illegible.

5 At the evidentiary hearing, the parties stipulated to the languagecontained in each of the illegible documents on which BOA relied.Prior to this hearing, the Court could not read many of BOA’sdocuments.

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In Masurovsky, the Court of Appeals made clearthat it is for “the courts, not arbitrators . . . todetermine whether the parties have agreed to arbitratea particular matter, unless the parties themselves haveagreed to submit the arbitrability question itself toarbitration.” Id. at 204 (citing First Options of Chi., Inc.v. Kaplan, 514 U.S. 938, 941-44 (1995)). TheMasurovsky Court further held that “courts should notassume that the parties agreed to arbitratearbitrability unless there is clear and unmistakableevidence that they did so.” Id.

On July 24, 2009, this Court ruled that there wasnot sufficient evidence that the parties agreed toarbitrate arbitrability. Indeed, the parties themselvesrecognized this on July 14, 2009 at the Status Hearingwhen they agreed that it was appropriate for the Courtto hold an evidentiary hearing to determine whetherthere is an agreement to arbitrate in North Carolina.6

In conducting the hearing the Court has followed

the following guidelines established by Masurovsky:

[t]he court’s factual inquiry must focus on theintent of the parties at the time they entered theagreement. This intent must be sought wherealways intent must be sought, namely in theconduct and language of the parties and thesurrounding circumstances. The document alonewill not suffice. What it was intended to cover

6 The District of Columbia later changed its position, and arguedthat no hearing was necessary because the Court could resolve theissue of whether there was an agreement to arbitrate in NorthCarolina based on the papers already submitted to it.

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cannot be known until we know what there wasto cover. Evidence in addition to the writtenagreement admissible for determining whetherthe parties’ contract is completely, or onlypartially, integrated includes agreements ornegotiations prior to or contemporaneous withthe adoption of a writing.

Id. at 202-03 (quoting Howard Univ. v. Good FoodServs., Inc., 608 A.2d 116, 126-27 (D.C. 1992)).

The Court also has considered evidence offered bythe District that there was no agreement to arbitrate inNorth Carolina because District officials lackedauthority to agree to such terms. See, e.g., District ofColumbia v. Greene, 806 A.2d 216, 222 (D.C. 2002) (“[A]person making or seeking to make a contract with theDistrict is charged with knowledge of the limits of theagency’s (or its agent’s) actual authority.”).

At the evidentiary hearing the Court heard fromnumerous witnesses who described the conduct andsurrounding circumstances that led to the execution ofvarious documents at issue in this case. BOA called thefollowing four witnesses: Edmund A. Bianchi, SeniorVice President and Senior Client Manager,Government Banking Group; Dawn Hensler, AssistantVice President and Senior Sales and Support Associate,Government Banking Group; Tammy Kennedy-Nichols,Senior Vice President and Senior Treasury ProductDelivery Officer, Government Banking Group; andSherri Lynne Skelly, Vice President and SeniorContract Management Document Officer. The Districtof Columbia called three individuals from the Office ofFinance and Treasury (OFT): Lasana K. Mack, DeputyCFO and Treasurer; Gloria Vines, Banking Relations

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Manager; and Alcindor Rosier, former AssociateTreasurer. The District also called Angela LongJiggets-Bazzi, former Deputy Director of the Office ofContracting and Procurement (OCP)7 and ContractingOfficer for the 2005 Contract. (See Pl.’s Hr’g Ex. 10.)Additionally, at the request of the Court, Dr. NatwarGandhi, the District’s Chief Financial Officer, andUlysses Glen, Jr., former Chief of Staff of OFT, alsotestified.8

II. Facts

On January 6, 2000, the District formally opened acontrolled disbursement account with BOA; theaccount, which was given the last four digits 2547,9 islocated in Asheville, North Carolina. BOA asserts, andthe District does not dispute, that from the mid-1980suntil January 2000, the District had maintained a CDAwith one or more of BOA’s predecessors.

7 The District’s Office of the Chief Financial Officer (OCFO) isorganized into a number of smaller units. The OFT and the OCPare the chief actors in this case.

8 The Court adjourned the hearing for two days to require theDistrict to search the files of OFT to look for any and all documentsrelating to the CDA, including the Treasury Services Bookletwhich contains the arbitration clause on which the Bank relies.The documents that were found did not include a TreasuryServices Booklet, but did include numerous Deposit Agreements.These documents were provided to BOA and were the subject ofdirect and impeachment examination by BOA of Districtwitnesses. BOA never asked the Court to order the District tosearch for documents in the OCP.

9 (See Def.’s Hr’g Exs. 4, 5.)

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A CDA is a specialized business service for depositaccounts through which the District of Columbia isnotified, at a specific time each business day, of thenumber and amount of all District-issued checks thatwill be presented for payment that day. The Districtthen has an additional window of time by which it mayrequest a stop payment on one or more of the checkspresented, and/or fund the account with enough moneyto cover the (validly) presented checks. The serviceallows the District to transfer to its CDA the exactamount of money necessary to cover the checkspresented and to allow idle funds to be investedelsewhere. (See Def.’s Hr’g Ex. 3 at 17-18, 24-26.) Byproviding customers “the opportunity . . . to viewimages of checks online and decide whether or not topay such checks[,]” BOA argues that this kind ofaccount is specially “designed to assist the customerwith detecting and preventing fraud.” (Def.’s Mot. toDismiss at 14-15 (citing First Aff. of Edmund Bianchiat ¶ 15, attached to the Mot. as Ex. 2).) Over the courseof a year, hundreds of millions of dollars flow throughthis account.

The District’s Complaint alleges that BOA, throughAssistant Bank Manager Walter Jones, aided andabetted DC Office of Tax and Revenue employeeHarriette Walters by facilitating withdrawals and oneor more transfers of monies that he knew to beimproper from the CDA into other accounts, some ofwhich were maintained at BOA. Specifically, theDistrict asserts that at the request of Ms. Walters, whohad given him cash gifts, Mr. Jones cashed checks onthe controlled disbursement account and depositedmonies improperly withdrawn from that account intoother persons’ accounts, including accounts held by

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fictitious companies as well as Ms. Walters and herniece Jayrece Turnbull, both of whom had accounts atBOA. Mr. Jones, Ms. Walters and Ms. Turnbull arenow incarcerated for their roles in the loss of millionsof dollars of District taxpayer monies. According to theComplaint, BOA discovered Mr. Jones’s role in thisscheme to steal District monies, subsequentlyterminated him, but never notified the District aboutwhat it had learned.

As previously mentioned, BOA relies on oneCorporate Resolution, numerous signature cards andtwo Authorizations and Agreements for TreasuryServices signed by District Treasury officials in supportof its Motion to Compel Arbitration. The CorporateResolution, which on its face was applicable to morethan one account, is entitled “Certified Copy ofCorporate Resolutions – Opening and MaintainingDeposit Accounts and Services.” It was signed onJanuary 6, 2000 by Valerie Holt, then the District’sCFO. (See Def.’s Hr’g Ex. 5.) This Corporate Resolutionstated that the Chief Financial Officer, the DeputyChief Financial Officer/Treasurer and two AssociateTreasurers were authorized

to execute and to sign any . . . depositagreement, signature card and any otherdocumentation required by Bank to open saidaccounts; . . . to enter into any agreements withthe Bank for the provision by Bank of variousTreasury Management services to [the Districtof Columbia] as such officer or employee maydetermine, in his or her sole discretion, and tosign any and all documents and take all actionsrequired by Bank relative to such Treasury

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Management services . . . and that any suchTreasury Management agreement(s) shallremain in full force and effect until writtennotice to terminate given in accordance with theterms of any such agreement shall have beenreceived by Bank and that such terminationshall not affect any action taken by the Bankprior to such termination . . . .

The 2000 Corporate Resolution also resolved that theBank is “designated as a depository of the [District ofColumbia] and that deposit accounts . . . be opened andmaintained in the name of [the District of Columbia]with Bank in accordance with the terms of the Bank’sDeposit Agreement . . . .”

On that same day (January 6, 2000) then-CFO Holtalso signed a signature card naming four individuals,including herself, Dr. William Hall, Deputy CFO andTreasurer, and two Associate Treasurers as personsauthorized to act under the Corporate Resolution, andverifying their respective signatures. That signaturecard also specified that “[b]y signing below, the[District of Columbia] agrees that this account is andshall be governed by the terms and conditions set forthin the following documents as amended from time totime . . . the Deposit Agreement and Disclosures . . . .”(Def.’s Hr’g Ex. 4, 33.)

The Deposit Agreement and Disclosures (“DepositAgreement”) is the source of the forum selection clauseat issue in this case. All versions of the DepositAgreement relevant to this case specify North Carolinaas the location for resolution of disputes. See Exhibit B.All Deposit Agreements give the Bank the rightunilaterally to amend its own Deposit Agreement. Id.

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BOA seeks enforcement of the February 2008 DepositAgreement; it requires that “[a]ny action or proceedingregarding your account” must be brought in NorthCarolina. (Def.’s Hr’g Ex. 28 at 41 (emphasis added).)

From 2000 until November 13, 2005, the date the2005 Contract was executed, District officials signed anumber of signature cards intending to add andsubtract the names of various officials whosesignatures were authorized on the account. CFO Dr.Natwar Gandhi signed one signature card in two placeson or about July 25, 2000. (See Def.’s Hr’g Ex. 6.) Hisfirst signature merely indicated he was an authorizedsignatory. His second, however, on the bottom of thecard, was on behalf of the District. In signing, he“agree[d] . . . [t]o be governed by the terms andconditions” set forth in the Deposit Agreement. (SeeDef.’s Hr’g Ex. 33.)

Associate Treasurer Lasana Mack was anotherofficial who signed signature cards prior to November13, 2005. Mr. Mack signed only as a designated accountsignatory on January 6, 2000 and July 25, 2000. (SeeDef.’s Hr’g Ex. 4; Def.’s Hr’g Ex. 6; Def.’s Hr’g Ex. 33.)Interim Associate Treasurer Alcindor Rosier alsosigned signature cards on July 25, 2000 and November1, 2005. On July 25, 2000 he signed only as adesignated signatory. (See Def.’s Hr’g Ex. 6.) OnNovember 1, 2005, he signed the authorization sectionreferring to the Deposit Agreement; however, hetestified that the sole purpose for his signature was toauthorize the removal of N. Anthony Calhoun as adesignated signatory. (See Def.’s Hr’g Ex. 14.) All threeof these individuals—Gandhi, Mack and Rosier—testified at the evidentiary hearing.

App. 80

When Dr. Gandhi was shown the signature card hesigned on or about July 25, 2000,10 he testified that he“presumed” that it was to open accounts and/or todesignate who could sign checks written on theaccount. He indicated he had no reason to believe thatthis specific card was any different. He said hedelegated authority to Treasury officials to sign othersignature cards to open and write checks on bankaccounts, but nothing more.

Dr. Gandhi also explained that when he becameChief Financial Officer in June 2000, the City’sfinances were a “basket case.” His priorities were to geta clean audit and to provide timely reports to theControl Board, which had been placed in charge of theCity. He revealed that there was simply not enoughtime to read every document that required hissignature; he relied on others to review documentsbefore he signed them. Moreover, Dr. Gandhi testifiedthat when signature cards are executed, thepresumption is that the document means “you can openan account and you can sign checks,” which is the onlyauthority he says he delegated to the Treasurer.

Similarly, Associate Treasurer Lasana K. Macktestified that he did not read the fine print on thesignature cards he signed. He said that because of hisunderstanding of the purpose of a signature card (toopen accounts and designate and remove designatedsignatories), he frequently signed signature cardswithout reading them. As of 2009, his understanding is

10 Dr. Gandhi forgot to date his signature. The July 25, 2000 dateis derived from a Bank stamp used for filing purposes. (See Def.’sHr’g Ex. 6.)

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that some signature cards contain fine print provisionsindicating that the signor agrees to “this and that” butothers do not. He was clear that at no time did hebelieve he was entering into a contract with BOA.Beyond this, he was clear that no one at OFT has theauthority to enter into contracts. That authority, hesaid, is with the OCP.

Alcindor Rosier testified in the same manner as Dr.Gandhi and Mr. Mack. To summarize, he also believedsignature cards were to add or remove signatories andthat OFT officials had no authority to enter into ormodify contracts.

OFT officials also signed two Authorization andAgreements for Treasury Services. On September 25,2000, two officials from the OFT (John Robinson,Acting Deputy CFO and Treasurer and Alcindor Rosier,Interim Associate Treasurer and Bank Manager)signed the first Authorization and Agreement forTreasury Services. By virtue of their titles, the 2000Corporate Resolution authorizes these individuals toenter into agreements for various TreasuryManagement Services.11 This Authorization andAgreement for Treasury Services, states in small print:“[t]he Client has received Bank of America’s TreasuryServices Terms and Conditions Booklet . . . and agreesto adhere to the Booklet . . . .” (See Def.’s Hr’g Ex. 7 at1.) It further indicates that “[t]he Booklet constitutes aseparate agreement between the Client and each Bank,

11 BOA Senior Vice President & Senior Client Manager EdmundBianchi testified that Treasury Management Services are the sameas Treasury Services. The District of Columbia did not dispute thistestimony.

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now or in the future, when the Bank provides anyService.” (Id.) As previously mentioned, the Bookletcontains an arbitration clause which the Bank seeks toenforce through the Motion to Compel Arbitration nowbefore this Court. The District of Columbia neverlocated a copy of this Booklet in any of the files of OFT,which this Court twice ordered to be searched. There isno evidence that the Booklet was provided to Robinsonor Rosier at the time they signed the Authorization andAgreement in 2000.12

On September 25, 2000, Associate TreasurerLasana Mack signed an Authorization and AgreementCertification, certifying inter alia that the signatureappearing on the Authorization and Agreement was the“true signature of a person authorized to execute theform on behalf of Client, and further certifies that theundersigned has full authority to execute thisCertification.” (Def.’s Hr’g Ex. 7 at 2.)13 The form statesthat “[i]f Client is a governmental entity, the entity’scounsel must sign this Certification.” Lasana Mack isnot the District’s counsel, nor is he a lawyer. Heobviously did not read the document because he knowshe is not the “entity’s counsel.” At the evidentiaryhearing the Bank asserted that this document wassuperfluous, and merely a guideline. Bank witness

12 See note 16, infra concerning Rosier receiving the Booklet inconnection with lockbox services four years later in 2004.

13 The Authorization and Agreement Certifications were notproduced by BOA until after the Court ordered it to produce andfile signed versions (if there were any) following the Court’sdiscovery of blank forms in the Treasury Services Booklet providedthe Court along with voluminous other filings.

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Sherri Lynne Skelly said the document was just a“convenience to the client.”

On May 22, 2002, the OCFO, see note 7, supra,issued a Request for Proposal (RFP) for a Contractcovering the CDA. The RFP contained languagerequiring the contractor to, inter alia, (1) investigatefraudulent checks, and (2) “facilitate the highestquality standards and to encourage the contractor tocontinually improve the operation of the controlleddisbursement account.” (Pl.’s Hr’g Ex. 1, Tab 1C at PX-02-000025, at 25 of 69, at PX-02-000038, at 38 of 69.)

The RFP also required bidders to include Paragraph8 entitled “Dispute Resolution,” which provides that“[i]f a dispute arises under or relates to the contract, aclaim by the Contractor shall be made in writing andsubmitted to the Contracting Officer for a writtendecision. A claim by the District against the Contractorshall be subject to a written decision by the ContractingOfficer.” (Pl.’s Hr’g Ex. 1, Tab 1C at PX-02-000048, at48 of 69.) The same provision further defined “claim” tomean

a written demand or written assertion by one ofthe contracting parties seeking, as a matter ofright, the payment of money in a sum certain,the adjustment or interpretation of contractterms, or other relief arising under or related tothe contract. A claim arising under a contract,unlike a claim relating to that contract, is aclaim that can be resolved under a contractclause that provides for the relief sought by theclaimant.

(Id. (emphasis added).)

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The RFP identified by name both the ContractingOfficer and the Contract Administrator. TheContracting Officer was designated as “the only officialauthorized to contractually bind the District.” (Id. atPX-02-000043, at 43 of 69 (emphasis added).) Bycontrast, the Contract Administrator has “theresponsibility of ensuring that the work conforms to therequirements of the contract.” (Id.) It explicitly statedthat “[t]he Contract Administrator shall not haveauthority to make changes in the scope or terms andconditions of the contract . . . .” (Id.) The RFP alsorequired that Procurement Practices Act of 1985 (PPA),D.C. Law 6-85 (codified at D.C. Code § 2-301.01 et seq.(2001), formerly D.C. Code § 1-1181.1 et seq. (1981)),14

be incorporated by reference. (Id. at PX-02-000047, at47 of 69.)

A pre-bid conference was held on June 12, 2002;representatives of several banks attended, includingBOA. On behalf of the District there wererepresentatives from the Treasurer’s Office and theOCP.

On June 24, 2002 Edmund Bianchi, Senior VicePresident and Senior Client Manager in theGovernment Banking Group at BOA, signed andsubmitted BOA’s Technical Proposal and Cost Proposalfor the CDA contract to a Contract Specialist. (See Pl.’sHr’g Ex. 1, Tab 1A at PX-03-000088 to 89.)

BOA’s 2002 Cost Proposal contained the District’srequired Dispute Resolution provision, as well as

14 The PPA has been amended from time to time; the Court infersthat the Contract incorporates by reference the Act as amended.

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required provisions covering the authority granted tothe Contracting Officer versus the ContractAdministrator. (See Pl.’s Hr’g Ex. 1, Tab 1C at PX-02-000043, at 43 of 69, at PX-02-000048, at 48 of 69.)BOA’s Cost Proposal also contained required contractclauses incorporating the PPA. (See Pl.’s Hr’g Ex. 1,Tab 1C at PX-02-000047, at 47 of 69.)

Mr. Bianchi testified that he included a copy ofBOA’s annual report and the then-current TreasuryBooklet with both BOA’s 2002 and 2005 submissions.15

Both the 1999 and 2004 Booklets contain a provisionentitled “Resolution of Disputes” mandating arbitrationin the United States of “[a]ny dispute or controversyconcerning your use of Services [which includescontrolled disbursement services] described in thisBooklet . . . .” (Def.’s Hr’g Ex. 3 at 41; Def.’s Hr’g Ex. 19at 61.) When he submitted these Treasury ServicesBooklets to the District, in both 2002 and 2005, Mr.Bianchi testified that he did not know they containedan arbitration provision.

15 At the evidentiary hearing, Mr. Bianchi was not consistent in theway he described submitting the Annual Report and TreasuryServices Booklet in response to the RFP. The Court credits theversion he gave on the afternoon of September 14, 2009, when hedescribed in detail how he put the Treasury Services Booklet andthe Annual Report in a manila envelope and attached thatenvelope with a rubber band or paperclip to the technical proposal,which was in a different envelope. Under these circumstances itwould not be surprising if the person who received the Bank’s 2002Response and 2005 Best and Final Offer (“BAFO”) did notunderstand these documents to be a formal part of the Bank’s bidfor the Contract.

App. 86

In its 2002 Technical Proposal BOA included aTable of Contents that referred to a section entitled“AGREEMENTS/DOCUMENTATION,” which listsdocuments in the following order: (1) Terms andConditions for Treasury Services; (2) Signature Card &Resolution; (3) Wire Transfer Form; (4) AutomatedInvestment Service Agreement; (5) Bank of AmericaDirect Profile; and (6) Electronic Positive Pay Profile.The Table of Contents noted that BOA’s 2001 AnnualReport was “attached.” (Pl.’s Hr’g Ex. 1, Tab. 1A at PX-03-000091 to 92.)

At the back of the 2002 Technical Proposal, behinda group of sample reports and investment rates andfollowing the page entitled “Agreements/Documentation,” the Bank included twelve blank formsrelating to a variety of services that the Bank wasoffering. These included, among others, a signaturecard form which included a reference to the DepositAgreement, an Authorization and Agreement forTreasury Services form and an Authorization andAgreement Certification form. The Bank also attacheda resolution form to be utilized by unincorporatedassociations. All of these forms were blank, with noreference to the District of Columbia or the OCFO, andunsigned. (See Pl.’s Hr’g Ex. 1, Tab 1A at PX-03-000202to 221.) At the evidentiary hearing, Mr. Bianchitestified that the Bank made a mistake when itattached the resolution form pertaining tounincorporated associations. He said the Bank meantto attach the corporate resolution like the one CFOHolt signed in January 2000.

Between 2002 and 2005, there was an ongoingrelationship between OFT and BOA. Their

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representatives met numerous times, sometimesmonthly, to discuss issues arising in connection withthe many accounts the District had with BOA,including the CDA. From the Bank’s perspective, thesemeetings were to develop and maintain goodrelationships between OFT officials and BOA. (Test. ofEdmund Bianchi.)16 Part of Mr. Bianchi’sresponsibilities as Senior Client Manager was topromote a smooth relationship with the client, which iswhy they periodically met. He worked directly withOFT officials. Together, they worked out all problemsthat arose.

In March 2005, Michael Wooten, Director of OCP,sent to every Bank that had previously bid on theControlled Disbursement Account an Amendment tothe RFP with new requirements not relevant to thisdispute. (See Pl.’s Hr’g Ex. 1, Tab 1E.) Mr. Bianchitestified he was told to update the Bank’s portion of theResponse only (i.e., it was not necessary to include

16 Mr. Bianchi testified that in September 2004, at one of theseperiodic meetings concerning lockbox services, he saw a Bankrepresentative named Bob Greco give the 2004 Treasury ServicesBooklet to Al Rosier; however, there was no other testimony aboutthe context in which this Booklet was given to Rosier. There is noevidence whatsoever that anyone associated the booklet givenRosier with the Controlled Disbursement Account. It certainly didnot raise in the mind of anyone who attended this 2004 meetingthat arbitration was being required by the Bank for any disputeconcerning banking services. As previously mentioned, Mr.Bianchi, who signed the 2005 Contract, did not know that therewas an arbitration provision in the Treasury Services Booklet. Itis highly likely that Mr. Greco gave the Booklet to Mr. Rosier forits description of lockbox services, which was the subject of themeeting.

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again the contract clauses required by the District ofColumbia). Mr. Bianchi testified he knew that pricewas eighty percent of the District’s focus.Consequently, he presented a new price proposal. Thesame forms that were in the 2002 Agreements/Documentation section described above (with theexception of the Annual Report) were also includedwith the 2005 Response that was otherwise known asthe Bank’s Best and Final Offer (BAFO). (See Pl.’s Hr’gEx. 1, at Tab 1A.) On April 14, 2005, Sharon Anderson,Contract Specialist with OCP extended the date for theBAFO to April 25, 2005. (See Pl.’s Hr’g Ex. 1, at Tab1E.) On April 25, 2005, Mr. Bianchi sent the Bank’sBAFO to Irene Scott, an OCP Contract Specialist. (SeePl.’s Hr’g Ex. 1, Tab 1B at PX-04-000003.)

At some point Mr. Bianchi learned that BOA hadbeen awarded the CDA contract. That contract,containing the merger clause, dispute resolution clause,modification clause and the clause incorporating thePPA was sent to him on OCP letterhead, and he signedit without dating it. He neither retained a copy of thedocument for himself nor requested the District to senda copy after its representative had signed. When hesigned the 2005 Contract, he had never read itsmandatory dispute resolution clause. Nor did he focuson the last sentence of Article I on page 2 of the 2005Contract which reads: “The intent of this contract is fora contractor to manage the disbursement account inaccordance with the published Request for Proposal[which incorporated the PPA of 1985].” (Pl.’s Hr’g Ex.1, Tab 1, at PX-05-000002, at 2 of 3.)

Mr. Bianchi was not alone in his ignorance ofdispute resolution requirements. Tammy Kennedy-

App. 89

Nichols, Vice President, Government Banking & SeniorTreasury Product Delivery Officer, was involved inpreparation of the Bank’s proposals in response to theRFP. When at the evidentiary hearing Ms. Kennedy-Nichols was shown the dispute resolution clause in theBank’s 2002 Response, she indicated that she had notread every word of “legalese” but instead focused onTreasury Services.

The 2005 Contract clearly states that “[t]heContracting Officer is the only official authorized tocontractually bind the District.” While Al Rosier, asOFT Associate Treasurer, is named the ContractAdministrator, the Contract plainly states that “theContract Administrator shall not have authority tomake changes in the scope or terms and conditions ofthe contract . . . .” (Pl.’s Hr’g Ex. 1, Tab 1C at PX-02-000043, at 43 of 69.) Although identical language wasalso included in the Bank’s 2002 RFP Response, as lateas the evidentiary hearing in September 2009, Mr.Bianchi mistakenly thought Mr. Rosier was the onlyindividual authorized to contract. Mr. Bianchi seemedto have forgotten that he mailed the Bank’s 2002Response to the RFP and 2005 BAFO to ContractSpecialists with OCP, not to Mr. Rosier in OFT. He alsoapparently forgot that OCP, and not OFT, officialscontacted him about submitting the BAFO.

Mr. Bianchi also never focused on the MergerClause in the 2005 Contract, which reads: “Thiscontract, including specifically incorporated documents,constitutes the total and entire agreement between theparties. All previous discussions, writings andagreements are merged herein.” (Pl.’s Hr’g Ex. 1, Tab1 at PX-05-000003, at 3 of 3.) That kind of “legalese”

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was not important to this Bank official whose chargewas to keep a good relationship with a client that ithad had since 2000.17

Ms. Angela Long Jiggets-Bazzi, who signed thecontract on behalf of the OCFO on November 13, 2005,is a Contract Specialist (but not a lawyer), who workedat the OCFO from mid-2005 through most of 2006. Atthe time she reviewed and signed the 2005 Contractshe did not know that the District already had aControlled Disbursement Account with BOA. She didnot recall any conversations with BOA or OFT officialsregarding the 2005 Contract. She was clear, however,that only the Contracting Officer had authority tomodify the Contract.

The first time Mr. Bianchi saw the name of theContracting Officer, Angela Long Jiggets-Bazzi, was inpreparation for the evidentiary hearing in this case.Once he signed and returned the Contract to OCP, Mr.Bianchi continued working with Al Rosier and otherOFT officials, and he felt no need to ask for thedocument. No lawyer was involved for the Bank in thepreparation of the first response to the RFP or theBAFO. No lawyer reviewed the 2005 Contract beforeMr. Bianchi signed it on behalf of the Bank.18

On March 6, 2006, OFT Treasurer Lasana Macksigned another Authorization and Agreement forTreasury Services. (See Def.’s Hr’g Ex. 18 at 1.) As

17 As of the last day of the hearing on September 24, 2009, OCFO’scontrolled disbursement account was still maintained by BOA.

18 According to Mr. Bianchi, in 2005 it was not BOA’s practice tohave government contracts reviewed by legal counsel.

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previously described, this document states that thesigner has received the Treasury Booklet and agrees“to adhere to” its terms. When he signed this document,he thought he was signing it in connection with addingsignatures to two other accounts, not the controlleddisbursement account. (Test. of Lasana Mack.) Beyondthis, he did not read this document in its entirety;instead, he relied on “staff” who told him it was neededto open two bank accounts. He did not intend to modifythe 2005 Contract between the parties. He was clearthat the OCP is responsible for procuring andexecuting all contracts, and that the OFT’s function isto manage cash flow, payments, borrowing,investments and the like.

On that same day (March 6, 2006), Ulysses Glen,Jr., Chief of Staff for OFT, signed the Authorizationand Agreement Certification. (See Def.’s Hr’g Ex. 18 at2.) Mr. Glen purported to certify that the signature ofLasana Mack was a “true signature of a personauthorized to execute the form on behalf of the Client.”(Id.) The Bank’s Certification form, however, says thatfor a governmental entity the person who should signthe form is “the entity’s counsel, or any other individualas permitted by the entity’s organizational documents.”Mr. Glen is not a lawyer, nor did BOA produce anyorganizational documents that demonstrated hisauthority to sign this Certification. When the Courtordered the District to produce its organizationaldocuments relating to OFT, the District said there wasno such document.19

19 Mr. Glen testified, at the request of the Court, about hissignature on the 2006 Authorization and Agreement Certification.During much of his testimony, he indicated that he believed his

App. 92

On April 17, 2006, Deputy CFO/Treasurer LasanaK. Mack signed a signature card in two places. (SeeDef.’s Hr’g Ex. 20.) He signed first as a designatedaccount signer, and then again, at the bottom of thepage, accepting the “Authorization” outlined in anearlier part of the document, which indicated that“[t]he deposit agreement we give you is part of youragreement with us regarding use of your account andtells you the current terms of our deposit accounts.”(See Def.’s Hr’g Ex. 32.) Mr. Mack testified that he “didnot read all of the verbiage” on this signature card.Like Dr. Gandhi, he said that because of the scope andvolume of demands on his time, it was impossible forhim to read all documents he needed to sign. Uponreviewing the document’s authorization language, hedid not understand that his signature meant that theOCFO was agreeing to Deposit Agreement provisions

signature simply verified that Mr. Mack’s signature (on theprevious page) was Mr. Mack’s true signature. When pressed bythe Court to review the language that indicated his signatureactually certified that Mr. Mack was “authorized to execute theform on behalf of the Client,” he suddenly said he was instructedto sign this document after an impromptu meeting attended byseveral OFT officials and Eric Payne, Esq. (who at the time wasthe Director of OCP). Mr. Glen testified that Mr. Payne told himhe could sign the Certification. Based on the demeanor of thiswitness, the Court cannot determine whether Mr. Payne actuallytold Mr. Glen to sign the Certification. Even if Mr. Payne did tellMr. Glen to sign the Certification, the Court cannot determine onthis record why Payne told Glen that as Chief of Staff he wasauthorized to sign. One possible explanation was given by GloriaVines in her testimony described on page 22, supra.

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on forum selection and arbitration.20 Mr. Mackrepeatedly testified that he was not authorized, nor didhe intend to modify the 2005 contract.

On December 28, 2007, Banking Manager GloriaVines signed a signature card removing Amy Kresse asan authorized signer on the CDA. (Def.’s Hr’g Ex. 27.)Ms. Vines also signed below the Agreement section,adopting the Authorization, which refers to the depositagreement. She said that her sole purpose in signingthe card was to remove Ms. Kresse as a signatory.

Ms. Vines also testified that at some point she hada conversation with either Al Rosier or someone fromOCP about what she perceived to be conflicts betweensignature cards and the 2005 Contract. She indicatedthat she was told it was okay for OFT officials to signsignature cards because the 2005 Contract wouldcontrol in any event. She admitted that she neverinformed the Bank that District officials realized theywere signing documents that conflicted with the termsof the 2005 Contract.

The 2005 Contract was extended four times. Itexpired on November 12, 2009 or the date any newcontract was executed, whichever came first. (Pl.’s Hr’gEx. 5.)

20 The Deposit Agreement in place on April 17, 2006 was theDecember 2005 version, which provided for arbitration of disputesfor under one million dollars. In this case, as previously mentioned,the District claims more than 100 million dollars in damages, andas a result, the 2005 Deposit Agreement’s arbitration clause doesnot apply to this dispute.

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III. Analysis

As the Supreme Court said in First Options of Chi.,Inc. v. Kaplan, “arbitration is simply a matter ofcontract between the parties; it is a way to resolvethose disputes -- but only those disputes -- that theparties have agreed to submit to arbitration.” 514 U.S.938, 943 (1995); see District of Columbia v. Greene, 806A.2d 216, 221 (D.C. 2002) (“The FAA directs courts toplace arbitration agreements on equal footing withother contracts, but it does not require parties toarbitrate when they have not agreed to do so. Thepurpose of Congress in [enacting the FAA] was to makearbitration agreements as enforceable as othercontracts, but not more so.” (citation omitted)).

In determining whether the parties have agreed toarbitrate this dispute in North Carolina, the Court willexamine two questions. First, the Court will addresswhether the 2005 Contract renders ineffective anyauthorization or agreement for arbitration and forumselection. Second, the Court will analyze whether theProcurement Practices Act of 1985, as amended,withheld authority from OCFO officials, who signeddocuments at issue in this case, to agree to arbitrate inNorth Carolina.

Whether the 2005 Contract rendered ineffective orextinguished any previously (or subsequently) executedAuthorization or Agreement depends upon the intentof the parties as reflected in the language of the 2005Contract, the parties’ conduct and the surroundingcircumstances. Ozerol v. Howard Univ., 545 A.2d 638,641 (D.C. 1988) (quoting Stamenich v. Markovic, 462A.2d 452, 456 (D.C. 1983)).

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A. The 2005 Contract Renders Ineffective Prior andSubsequent Agreements on Arbitration and ForumSelection.

The 2005 Contract contains a prominentlydisplayed21 merger clause entitled “ARTICLE V –TOTAL AGREEMENT,” which reads as follows: “Thiscontract, including specifically incorporateddocuments,22 constitutes the total and entire agreementbetween the parties. All previous discussions, writings,and agreements are merged herein.” (See Pl.’s Hr’g Ex.1, Tab 1 at PX-05-000003, at 3 of 3.) Citing HowardUniversity v. Good Food Services., Inc., 608 A.2d 116,127 n.8 (D.C. 1992), the District of Columbia arguesthat the 2005 Contract is “completely integrated” andas a result, it “supercedes [sic] all written or oralagreements within its scope[,]” including anypreviously agreed upon dispute resolution provisions.The District further contends that the contractprovision designating the Contracting Officer as “theonly official authorized to contractually bind theDistrict” withholds the authority of other Districtofficials to enter into agreements with BOA that modifythe terms of the 2005 Contract. (See Pl.’s Hr’g Ex. 1,Tab 1C, at PX-02-000043, at 43 of 69.)

Bank of America counters that the inclusion ofblank copies of three forms—an Authorization and

21 The Court uses the phrase “prominently displayed” to contrastits presentation with a number of other clauses which were set insmall print. (See Pl.’s Hr’g Ex. 1, Tab 1, at PX-05-000003, at 3 of 3.)

22 None of the “specifically incorporated documents” contain anexecuted signature card or Authorization and Agreement forTreasury Services. Id.

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Agreement for Treasury Services, a signature card anda Certified Copy of Unincorporated AssociationResolution—is indicative of the fact that the partiescontemplated other agreements, and as a result, the2005 Contract is only partially integrated and may besupplemented by and with other agreements betweenthe parties. Chief among the documents that BOAasserts survive the 2005 Contract is the 2000Corporate Resolution, which authorizes the CFO,Deputy CFO/Treasurer and Associate Treasurers “toenter into any agreements with the Bank for theprovision by Bank of various Treasury Managementservices to this Corporation . . . .” (Def.’s Hr’g Ex. 5;Def.’s Hr’g Ex. 34.) BOA also argued in closingargument that the 2006 Authorization and AgreementCertification was validly executed and therefore, thearbitration provision in the 2004 Treasury ServicesBooklet governs this dispute.23

“When parties to a contract have executed acompletely integrated written agreement, it supersedesall other understandings and agreements with respectto the subject matter of the agreement between theparties, whether consistent or inconsistent, and isviewed as the sole expression of the parties’ intent.”Masurovsky, 687 A.2d at 202. Where a contract iscompletely integrated, it “may not be supplementedwith prior representations not ultimately includedtherein, even if those representations are not expresslycontradicted by the contract itself.” Hercules & Co. v.Shama Rest. Corp., 613 A.2d 916, 928 (D.C. 1992). By

23 This is contrary to the position taken by the Bank’s counsel inher Opening Statement.

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contrast, an agreement that is only partially integrated“represents the agreement of the parties with respectto the matters stated therein, but . . . there may beadditional consistent terms.” Masurovsky, 687 A.2d at202 (emphasis added).

Merger clauses seek to exclude any priorrepresentations, whether oral or written, between twoparties and set forth the writing as the sole, controllingdocument governing the parties’ relationship.RESTATEMENT (SECOND) OF CONTRACTS § 216 cmt. e(1981). Generally, contracts containing merger clauseslike the one at issue here, which contains a phraseindicating that the writing is intended to “constitute[ ]the total and entire agreement between the parties,”are considered completely integrated contracts. 2 E.ALLAN FARNSWORTH, CONTRACTS § 7.3 at 198 (1990). Inall events, “[t]he presence . . . of a merger clauseindicating complete integration may be a significant,though not conclusive, factor in ascertaining theparties intent.” Good Food Servs., Inc., 608 A.2d at 127(internal quotation marks omitted).

BOA Senior Vice President Edmund Bianchitestified, and District officials confirmed, that at notime, either prior to the award of the 2005 Contract orthereafter, did the parties discuss dispute resolution.Mr. Bianchi claimed that when he signed the 2005Contract containing the merger clause, he believed hewas agreeing to the terms of both the District’s RFPand additional terms provided by BOA. Theseadditional terms, he testified, included those containedin the Treasury Services Booklet, which he maintainshe mailed with the Bank’s 2002 Responses and 2005BAFO. However, Mr. Bianchi admitted during the

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evidentiary hearing that when he signed the 2005Contract he had no idea that an arbitration provisionwas included in the Bank’s Treasury Services Booklet.Significantly, the Treasury Booklet was not included aspart of the 2002 RFP Response and the 2005 BAFOthat were specifically incorporated into the 2005Contract that Mr. Bianchi signed on behalf of BOA.Nor did he keep a copy of the 2005 Contract that hesigned. Based on this and other testimony, it is clear tothe Court that Mr. Bianchi was concerned withpromoting the relationship that had been establishedbetween the parties both before and after he signed the2005 Contract. He did not focus on the merger clause,dispute resolution clause, arbitration or other legalrequirements of the PPA that had been incorporatedinto the Contract.

In light of these established facts about the 2005Contract, the Court also considered the circumstancessurrounding its formation. When Dr. Gandhi wasappointed to be the District’s Chief Financial Officer inJune 2000, he also became head of the OCFO. ThatOffice was created five years before in response to theCity’s severe financial crisis. See Abadie v. D.C.Contract Appeals Bd., 843 A.2d 738, 746 (D.C. 2004)(citing the existence of “widespread waste, fraud andabuse, no clear line of authority, cronyism, a severelack of training and professionalism among contractingofficers, and too many District employees withcontracting authority” as an explanation for the factthat in 1996, “the city’s system of procuring goods andservices was in a state of chaos”). In an effort toseparate this newly created OCFO from the city’sprevious contracting “system,” the CFO was givenindependent authority to enter into contracts on behalf

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of the District. Dr. Gandhi testified before this Courtthat he delegated the power to enter into procurementcontracts to the OCP. (See Ex. C to District ofColumbia’s Response to Bank of America’s Praecipe inResponse to the Court’s Request for AdditionalAuthorities Sept. 17, 2009 (written delegation ofauthority from CFO to OCP).)

At the time Dr. Gandhi was appointed CFO in June2000, the District maintained more than 1400 bankaccounts. (Test. of Dr. Gandhi.) Dr. Gandhi indicatedthat during the first few years of his tenure, hisprimary concern was with the City’s annual FinancialReport and clean audits. He testified that, as a result,he delegated to OFT his authority to open andmaintain bank accounts. Indeed, Mr. Rosier testifiedthat, as an Associate Treasurer, it was hisresponsibility to survey each of the District’s bankaccounts and “bring them under control.” This Courtfinds that the District’s issuance of the 2002 RFP atissue in this case was part of the OCFO’s effort toassert control over the District’s finances, including itsbank accounts. An important part of that endeavor wasempowering only one person to contractually bind theDistrict and, except for claims arising under the FalseClaims Act, establishing only one method of resolvingdisputes—through the Contracting Officer.24 Theimportance of the RFP was made explicit by the lastsentence of Article I, of the 2005 Contract, whichstates: “The intent of this contract is for a contractor tomanage the disbursement account in accordance with

24 See Part III.C., infra at pg. 32 for discussion of the methods ofresolving disputes arising under the False Claims Act.

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the published Request for Proposal.” (Pl.’s Hr’g Ex. 1,Tab 1, at PX-05-000002, at 2 of 3.)

It would be remiss of this Court not to drawattention to the fact that this controversy overcontrolling dispute resolution clauses is furthercomplicated by undisputed evidence that relatively fewof the documents pertaining to the CDA werethoroughly reviewed before they were signed. In this,culpability knows no bounds; senior officials at bothBOA and the District of Columbia admitted that theyfailed to read all or part of documents which theysigned or approved. Mr. Bianchi testified that he didnot focus on the contract terms contained in theDistrict’s RFP and Ms. Kennedy-Nichols, who wasinvolved in preparation of the Bank’s responses to theRFP, focused on what she called “treasury services,”not “legalese;” Dr. Gandhi and Mr. Mack testified theyrelied on others to review BOA documents before theysigned them.

In the District of Columbia “[a] person who signs acontract after having had an opportunity to read andunderstand it is bound by its provisions.” Interdonatov. Interdonato, 521 A.2d 1124, 1133 (D.C. 1987)(emphasis added). Consequently, although some of thedocuments in this case were signed without being read,and that many were considered by their signatories tobe less or more expansive than they actually were, theparties ordinarily are still bound by their terms. SeeSaylor v. Handley Motor Co., 169 A.2d 683, 685 (D.C.1961). To the extent these terms are inconsistent, onlya Court can resolve which terms prevail.

In this case, the parties’ written contract containinga merger clause, the conduct of the parties and the

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surrounding circumstances, evaluated as a whole,weigh heavily in favor of the 2005 Contract’scategorization as a fully integrated document withrespect to dispute resolution and authority to modify.See Good Food Servs., Inc., 608 A.2d at 128 (reversingsummary judgment granted without an evidentiaryhearing on the disputed issue of whether the parties’written agreement was “a completely integratedwriting, at least with respect to insurance coverage”).25

However, the parties did not intend the 2005 Contractto invalidate BOA documents signed by the CFO andOFT officials to the extent such documents enabled thecontrolled disbursement account to remain open and bemaintained by authorized persons. In other words, theCourt finds that the 2005 Contract provisionsgoverning dispute resolution and authority to modifythe Contract supersede (1) any dispute resolution orforum-selection clauses the Bank claims werepreviously agreed upon and (2) any provision, whetherlocated in the 2000 Corporate Resolution or elsewhere,which would otherwise allow other District officials toagree to arbitration in North Carolina (or elsewhere).

Having so ruled, this Court cannot find, as Bank ofAmerica urges, that the 2006 Authorization andAgreement for Treasury Services, signed by LasanaMack, Deputy CFO/Treasurer, was validly executed or

25 Even if the 2005 Contract as a whole may be characterized as apartially integrated document, this agreement would supersedeany inconsistent terms of previous Agreements or Authorizations.Good Food Services, 608 A.2d at 127 N.8; RESTATEMENT (SECOND)OF CONTRACTS § 213 cmt. b (1981) (“Whether a binding agreementis completely integrated or partially integrated, it supersedesinconsistent terms of prior agreements.”).

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that any signature cards executed subsequent to the2005 Contract bound the District to the forum-selectionclause within the 2008 Deposit Agreement. Followingthe execution of the 2005 Contract, the DeputyCFO/Treasurer plainly lacked the authority to bind theDistrict to the dispute resolution clauses in either the2004 Treasury Booklet or the 2008 Deposit Agreement.

B. Neither the Authorization and Agreements forTreasury Services/Certification Documents nor the2000 Corporate Resolution Bound the District toArbitration.

At the evidentiary hearing, BOA argued most of thetime26 that the Authorization and AgreementCertifications were superfluous or guidelines “for theconvenience of the client.” (Test. of Sherri LynneSkelly.) Nevertheless, for the sake of completeness, theCourt finds that, whatever their true purpose, thesedocuments did not bind the District to arbitration.

The 2000 Authorization and Agreement andaccompanying Certification were superseded by the2005 Contract. In other words, whatever authority anyOFT official had to sign the 2000 Authorization andAgreement and Certification documents, that authoritywas extinguished by the 2005 Contract. See Part III.A.,supra.

Beyond this, the 2000 Authorization andCertification documents do not comply with BOA’s own

26 After Ulysses Glen, Jr. testified, the Bank changed its positionin Closing Argument to contend that the 2006 Authorization andAgreement for Treasury Services was binding on the District. Seenote 19, supra.

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procedures, as set forth on the Certification form itself.The obvious purpose of the form was for a person withauthority to certify that the individual who signed theAuthorization and Agreement for Treasury Serviceshad the authority to sign the Authorization. The 2000Certification form specifically requires that “[i]f Clientis a governmental entity, the entity’s counsel must signthis Certification.” (Def.’s Hr’g Ex. 7 at 2.) Contrary tothis instruction however, Associate Treasurer LasanaMack’s signature on the Certification was accepted bythe Bank in lieu of the signature of the “entity’scounsel.”

Likewise, the obvious purpose of the 2006Certification was to make certain that the person whosigned the Authorization and Agreement for TreasuryServices was authorized to do so. In 2006 however,when the client was a governmental entity, theCertification could be signed only by the entity’scounsel or “any other individual as permitted by theentity’s organizational documents.” (Def.’s Hr’g Ex. 18at 1-2.) The Certification however, was not signed bythe District’s counsel but by Ulysses Glen, Jr., Chief ofStaff, who is not a lawyer. Significantly, BOA had noDistrict organizational documents indicating hisauthority.27

Implicitly acknowledging the weakness of theseCertification documents, BOA rests its authorityargument on the 2000 Corporate Resolution signed by

27 The Court finds that Mr. Glen’s testimony regarding animpromptu meeting where he was informed he could sign the 2006Certification insufficient under District law to establish that heactually had such authority.

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then-CFO Valerie Holt. However, to the extent thatCorporate Resolution provided District officials withauthority to sign documents concerning disputeresolution and forum selection, that authority wasextinguished by the merger clause of the 2005Contract.

BOA argues the 2000 Corporate Resolution wasincluded in, rather than merged into, the 2005Contract, through the inclusion of an unsignedUnincorporated Association Resolution form amongnearly a dozen other blank forms in BOA’s 2002Response to the RFP and 2005 BAFO. At theevidentiary hearing, Mr. Bianchi admitted theinclusion of this document was a mistake; he testifiedthat the Bank’s 2002 Response and 2005 BAFO weresupposed to contain a copy of the Bank’s CorporateResolution form. To conclude that this inapplicable andunsigned blank form establishes that the arbitrationclause survived the merger provision of the 2005Contract and its dispute resolution provision is neitherlogical nor credible. See, e.g., Affordable EleganceTravel, Inc. v. Worldspan, L.P., 774 A.2d 320, 328 (D.C.2001) (finding it well-settled in the District of Columbiathat “any ambiguity in a contract will be construedagainst the drafter”).

C. The False Claims Act (Count Seven)

A reading of the Procurement Practices Act of 1985,D.C. Law 6-85 (codified at D.C. Code § 2-301.01 et seq.(2001), formerly D.C. Code § 1-1181.1 et seq. (1981)),which was incorporated into the 2005 Contract, leadsthis Court to treat Count Seven different from theother counts. As the District correctly argues, themechanism for resolving disputes under the False

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Claims Act, which is part of the PPA, is for theAttorney General to bring an action in Superior Court.See D.C. Code § 2-308.03(a)(3); § 2-308.15 (2001). Sinceunder the PPA and the 2005 Contract, whichincorporates the PPA, the applicable mechanism forresolving disputes that arise under the False ClaimsAct is through the Court and not the ContractingOfficer, this Court will not dismiss Count Seven.

D. The Procurement Practices Act Withholds fromDistrict Officials the Power to Agree to ContractClauses on Arbitration or Forum Selection.

This Court has determined that there was noagreement to arbitrate or litigate in North Carolinaonce the parties entered into the 2005 contract.28 SeePart III.A., supra. There is, however, an additionallegal ground for concluding that there was noagreement to arbitrate: lack of lawful authority ofOCFO representatives to agree to such a term. This isan issue the Supreme Court specifically declined todecide in Buckeye Check Cashing v. Cardegna, 546 U.S.440, 444 n.1 (2006). There, the Court noted that

[t]he issue of the contract’s validity is differentfrom the issue whether any agreement betweenthe alleged obligor and obligee was everconcluded. Our opinion today addresses only theformer, and does not speak to the issue decided

28 BOA argues that an agreement to arbitrate is valid because “theFAA supersedes state laws lodging primary jurisdiction in anotherforum, whether judicial or administrative.” Preston v. Ferrer, 128S.Ct. 978, 987 (2008). However, in reaching this conclusion, thePreston Court first presumes the existence of an “agree[ment] toarbitrate all questions arising under a contract.” Id. at 987.

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in the cases cited by respondents (and by theFlorida Supreme Court), which hold that it is forcourts to decide . . . whether the signor lackedauthority to commit the alleged principal . . . .

Id. (citations omitted).

The District argues that OCFO officials lackedauthority to bind it to arbitration because the PPA, asamended, withholds from District officials, includingthe CFO, the authority to agree to the arbitration andforum selection clauses that the Bank seeks to enforcein this case.29 See D.C. Code § 2-301 (2001).Specifically, D.C. Code § 2-308.03 (a)(1) (2001) providesthat “[a]ll claims by the District government against acontractor arising under or relating to a contract shallbe decided by the contracting officer . . . .”30 There canbe no agreement to arbitrate in North Carolina if theDistrict official who signed the document “agreeing” to

29 During all relevant time periods, both parties agree that theCFO had the power to open and maintain bank accounts and todelegate to others the power to maintain those bank accounts. SeeDistrict of Columbia Financial Responsibility and ManagementAssistance Act of 1995 (“Control Board Act”), Pub. L. No. 104-8,§ 302(a), 109 Stat. 97, 142-47 (1995) (amending Title I of the D.C.Code by adding § 302 (a), (c) which establish the office of the ChiefFinancial Officer of the District of Columbia and sets forth theOffice’s duties) (codified as amended at D.C. Code § 1-204.24a(Supp. 2009)). There also is no question that the CFO coulddelegate certain functions to officials in the OFT, including theTreasurer. Id. (adding § 302 (e)(2)) (codified as amended at D.C.Code § 1-204.24e (2) (Supp. 2009)).

30 With respect to the District’s FCA claim, section 2-308.03likewise limits the authority of a District official to agree toarbitrate. See Part III.C.

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arbitrate in North Carolina had no authority to do so.See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384(1947) (holding that “anyone entering into anarrangement with the Government takes the risk ofhaving accurately ascertained that he who purports toact for the Government stays within the bounds of hisauthority”); District of Columbia v. Greene, 806 A.2d216, 222 (D.C. 2002) (noting that “a party contractingwith the government is on constructive notice of thelimits of the [government agent’s] authority and cannotreasonably rely on representation to the contrary”(alteration original) (internal quotation marksomitted)); Coffin v. District of Columbia, 320 A.2d 301,303 (D.C. 1974) (“It is a well-recognized principle thata would-be contractor with a municipal corporation isdeemed imputed with knowledge as to the scope of thecontracting agency’s authority.”)

On April 17, 1995, in response to “financialproblems and management inefficiencies in thegovernment of the District of Columbia” the UnitedStates Congress passed the Control Board Act. Pub. L.No. 104-8, § 302(a), 109 Stat. 97, 142-47 (1995). Aspreviously stated, that Act amended the D.C. Self-Government Act and established, inter alia, the ControlBoard31 and the OCFO. Id. at §§ 101, 302(a). Pursuantto the Procurement Reform Amendment Act of 1996

31 The Control Board was established, inter alia, to facilitate theelimination of budget deficits and cash shortages, as well as toassist the District in “modernizing its budget, account, personnel,procurement, information technology and management systems toensure the maximum financial and performance accountability ofthe District government and its officers and employees.” ControlBoard Act, Pub. L. No. 104-8, § 2(b), 109 Stat. at 99.

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(Reform Act), during a control year32 the OCFO was“exempt from the provisions of [the PPA],” but wasrequired to adopt the “procurement rules andregulations adopted by the District of ColumbiaFinancial Responsibility and Management AssistanceAuthority.” Procurement Reform Amendment Act of1996, D.C. Law 11-259, § 104(c) (1996). The OCFOadopted the Control Board’s procurement rules andregulations on May 15, 1997. OCFO FinancialManagement and Control Order No. 97-15.33 Bothparties agree that through a series of Acts, the OCFO’s“control year authority” was extended throughSeptember 30, 2005.34

Following the OCFO’s adoption of the ControlBoard’s procurement rules and regulations and the

32 “Control year” is defined as “any fiscal year for which a financialplan and budget approved by the Authority . . . is in effect, andincludes fiscal year 1996.” District of Columbia Self-GovernmentAct, § 305(4).

33 (See BOA (black) Binder on DC CFO Procurement Authority atTab 3.)

34 See District of Columbia Appropriations Act, 2002, Pub. L. No.107-96, § 111(c), 115 Stat. 923, 948 (2001) (through July 1, 2002);2002 Supplemental Appropriations Act for Further Recovery fromand Response to Terrorist Attacks on the United States, Pub. L. No.107-206, § 409, 116 Stat. 820, 848 (2002) (through July 1, 2003);Emergency Wartime Supplemental Appropriations Act, 2003, Pub.L. No. 108-11, § 2302, 117 Stat. 559, 593 (through September 30,2004); H.J. RES. 107, Pub. L. No. 108-309, § 120, 118 Stat. 1137,1140 (2004) (through November 20, 2004); District of ColumbiaAppropriates Act of 2005, Pub. L. No. 108-335, § 336(a), 118 Stat.1322, 1347 (2004) (retroactive to April 16, 2003 and throughSeptember 30, 2005).

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numerous extensions of the “control year authority,”the Court of Appeals decided Abadie v. D.C. ContractAppeals Board, 843 A.2d 738 (D.C. 2004). The Districtargues Abadie supports its position that the CFO wassubject to the dispute resolution provision of the PPAin 2000. Though not addressing the issue of arbitration,Abadie supports the general proposition that the PPAwas applicable to the OCFO. There, the Court ofAppeals held that the Contract Appeals Board (CAB)(to which a party may appeal certain decisions of aContracting Officer) had jurisdiction over a contractdispute between the OCFO and Business SoftwareAssociates (BSA) concerning a contract the OCFOawarded BSA in 2000, the same year then-CFO Holtsigned the Corporate Resolution at issue. Abadie, 843A.2d at 740-741. In deciding that the PPA applied tothe CFO (with one limited exception not relevant tothis case) the Court of Appeals rejected OCFO’scontention that the CAB had no jurisdiction over theCFO in matters of contract administration. Abadie, 843A.2d at 740, 743-746. Since there is no contention thatthe authority vested in the CFO in September 2000was any different from any other control year, Abadiesupports the District’s contention that when then-CFOHolt signed the Corporate Resolution in January 2000,she lacked authority to agree or to delegate the powerto agree to arbitrate. What power she herself lacks,she, of course, cannot delegate to OFT officials.

Similarly, when CFO Gandhi signed a signaturecard in 2000 agreeing to be bound by the 1999 DepositAgreement (which required litigation of disputes inNorth Carolina), he too lacked the authority to agree,or delegate the power to agree, to any disputeresolution provisions outside the PPA.

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However, BOA urges that in passing the 2006District of Columbia Appropriations Act, retroactive toApril 1997, Congress intended to and did overruleAbadie. The Bank contends that the 2006 District ofColumbia Appropriations Act was intended to be “asweeping, retroactive exemption and ratification of theCFO’s [independent] contracting practices andprocedures . . . .” (Def.’s Praecipe in Response to theCourt’s Request for Additional Authority at 5, Sept. 13,2009.) The Act provides:

The entire process used by the Chief FinancialOfficer to acquire any and all kinds of goods,works and services by any contractual means,including but not limited to purchase, lease orrental, shall be exempt from all of the provisionsof the District of Columbia’s ProcurementPractices Act . . . .

District of Columbia Appropriations Act of 2006, 109Pub. L. No. 115, § 132, 119 Stat. 2396, 2522 (2005)(emphasis added).

First, the Act’s legislative history reveals noconsideration of the Abadie decision, indeed thedecision is not mentioned at all. Furthermore,Congress’ reference to the CFO’s authority regardingonly the acquisition of goods and services and not theadministration of services contracts evidences a lack ofintent to overrule Abadie. Moreover, Congress’ use ofthe word “acquire” together with the clarity with whichit subsequently awarded the OCFO a certain degree of

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autonomy, effective October 2007,35 leads this Court toagree with the District of Columbia that in 2005, theOCFO was not exempt from PPA provisions governingdispute resolution; rather, the 2006 Appropriations Actexempted the CFO from the PPA with respect tocontract acquisition, but not contract administration.36

To summarize, since the PPA’s dispute resolutionprovision applied to the OCFO on September 25, 2000and March 6, 2006, when the Authorization andAgreements for Treasury Services were signed, OCFOofficials, including the CFO and OFT officials, lacked

35 In 2006, Congress passed the District of Columbia OmnibusAuthorization Act (Omnibus Act), which codified the independentprocurement authority the CFO possesses today. Pub. L. No. 109-356, § 203(a) 120 Stat. 2019, 2037-2038 (2006) codified at D.C.Code § 2-301.04 (2009 Supp.); see Revised ContinuingAppropriation Resolution, 2007, Pub. L. No. 110-5, § 21073 (h), 121Stat. 8, 58 (2007) (delaying the effective date of the Omnibus Actto October 16, 2007).

36 Alternatively, even if the PPA were inapplicable, the Districtpoints out that the CFO himself limited the authority of OCFOofficials to enter into contracts binding the District to arbitration.On May 20, 1996, the CFO formally adopted municipal regulationsissued by the District under the PPA for contract execution. (Ex.B. to District of Columbia’s Response to Bank of America’sPraecipe in Response to the Court’s Request for AdditionalAuthorities Sept. 17, 2009 (CFO Financial Management andControl Order No. 96-04 (effective May 20, 1996)).) Theseregulations specify to whom the CFO delegated his authority toenter into a contract for the procurement of banking services,among others. District of Columbia Municipal Regulations Title 27,Chapter 12, Section 1200.01 specifies: “only a contracting officer isauthorized to sign and enter into a contract . . . .” Thus, only aContract Officer, and not the Treasurer or any other OFT officialcould agree to arbitration.

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authority to agree to arbitrate in North Carolina.Beyond this, the 2005 Contract provision incorporatingthe PPA37 evidences the intent of the OCFO to adhereto the PPA with respect to its dealings with BOA.38

Conclusion

The Court fully respects the process of arbitrationand the Supreme Court cases mandating arbitrationwhere the parties have agreed to arbitrate.39 In this

37 (Pl.’s Hr’g Ex. 1, Tab 1A at PX-03-000047, at 47 of 69; Tab 1C atPX-03-000047, at 47 of 69 (“The provisions of the following Acts,and representations and stipulations required by any of the saidActs together with the provisions of applicable regulations madepursuant to said Acts, are hereby incorporated by reference and,to the extent applicable, incorporated by reference in this contract;together with the Laws of the District of Columbia, and theMaterial Management Manual, effective July 1, 2974, asamended. . . . H. Procurement Practices Act of 1985, D.C. Law 6-110.”).)

38 The Court notes again that the Bank’s 2002 Cost Proposalincluded the District’s required language incorporating the PPA.See pg. 15-16, supra.

39 See Preston, 128 S.Ct. at 987; Buckeye, 546 U.S. at 443(recognizing that § 2 of the FAA “embodies the national policyfavoring arbitration and places arbitration agreements on equalfooting with all other contracts”); First Options, 514 U.S. at 945(adopting the view that “issues will be deemed arbitrable unless itis clear that the arbitration clause has not included them”(internal quotation marks omitted) (quoting 1 DOMKE ONCOMMERCIAL ARBITRATION § 12.02, at 156 (rev. ed. Supp. 1993)));Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614,625-626 (1985) (finding that “‘[the] preeminent concern of Congressin passing the Act was to enforce private agreements into whichparties had entered,’ a concern which ‘requires that we rigorouslyenforce agreements to arbitrate’” (quoting Dean Witter Reynolds

App. 113

case, it is clear to the Court that “finance people” drovethe relationship between the parties. Lawyers were notinvolved, and individuals (on both sides) signeddocuments they did not read.

In 1996 the District of Columbia’s system ofprocuring goods and services was in a state of chaos.See Abadie, 843 A.2d at 746. At a public oversightroundtable regarding the District’s procurementsystem held in May of that year, it became clear thatthe procurement process was seriously marred by,among other problems, the lack of a “clear line ofauthority” and inadequate training. Id. CFO Gandhitestified eloquently about the fiscal crisis and degree ofchaos that plagued his Office when he became CFO inJune 2000. As part of the effort to gain greater controlover the District’s finances, the District issued an RFPfor an account it already maintained. The RFP set forthspecific terms governing the relationship and explicitlydesignating one person within the OCFO as having theauthority to bind the District with respect to disputesrelating to the Contract.

With respect to Counts One through Six and CountEight, this Court concludes that the 2005 Contract, by

Inc. v. Byrd, 470 U.S. 213, 221 (1985))); Southland Corp. v.Keating, 465 U.S. 1, 10 (1984) (“In enacting §2 of the [FAA],Congress . . . withdrew the power of the states to require a judicialforum for the resolution of claims which the contracting partiesagreed to resolve by arbitration.”); Moses H. Cone Mem’l Hosp. v.Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (agreeing with theCourts of Appeals articulating “a healthy regard for the federalpolicy favoring arbitration”).

App. 114

incorporating the PPA,40 established the mechanism forresolving disputes relating to the Contract for the CDAbetween these parties. Consequently, all priorAgreements and Authorizations with respect to disputeresolution and authority to modify the terms of theparties’ relationship were merged into the 2005Contract. Subsequent BOA efforts or attempts to haveOFT officials, other than the Contracting Officer, agreeto arbitration in North Carolina are ineffective. Inother words, “under well-settled agency principles, theDistrict cannot be bound by the ultra vires act of acontracting officer purporting to agree to arbitration”in North Carolina. Greene, 806 A.2d at 220.

In any event, as to all counts, including CountSeven (False Claims Act), under the PPA OFT officialslacked the authority to agree to arbitration or forumselection provisions. Beyond this, there can be noquestion that the CFO intended the 2005 Contract tobe governed by the PPA; the Act was explicitlyincorporated by reference into the 2005 Contract.Therefore, to the extent that any document signed bythe CFO or OFT officials purported to authorize oragree to arbitration in North Carolina, their signatureswere unauthorized and not binding on the District ofColumbia.

Wherefore, it is this 9th day of December 2009,hereby

40 The RFP language requiring the PPA to be incorporated into thecontract was included in the Bank’s Cost Proposal. (See Pl.’s Hr’gEx. 1, Tab 1C at PX-02-000047, at 47 of 69.)

App. 115

ORDERED that BOA’s Motion to Dismiss, or in theAlternative, Stay Based on Forum Selection andArbitration Clauses (i.e. Motion to Compel Arbitration)is DENIED; and it is

FURTHER ORDERED that as they apply to BOA,all Counts in the First Amended Complaint with theexception of Count Seven (False Claims Act) areDISMISSED so that the District can pursue thesubstance of their other claims before the ContractingOfficer;41 and it is

FURTHER ORDERED that within 30 days ofentry of this Order, the District of Columbia shall filea Second Amended Complaint reflecting the claims stillpending against BOA and Defendants Walters, Jonesand Turnbull.

/s/Joan Zeldon [SEAL] Judge Joan Zeldon(Signed in Chambers)

41 The District, though Counsel, told this judge that if the Courtwere to rule that the 2005 Contract applied to this dispute, itwould place before the Contracting Officer the substance of all itsclaims other than its claims under the False Claims Act.

App. 116

Copies to:

Ava Lias-Booker, Esq. Brian A. Kahn, Esq. Michelle N. Lipkowitz,Esq. Timothy Heaphy, Esq. Robert Swain, Esq. McGuire Woods LLP 1050 Connecticut Avenue,N.W. Suite 1200 Washington,DC 20036-5317 Counsel for Bank ofAmerica

George Valentine,Esq. Paul Gallagher, Esq. Jane Drummey, Esq. Ellen Efros, Esq. Craig Farringer, Esq. Office of the AttorneyGeneral 441 4th Street, N.W. Washington, D.C.20001 Counsel for theDistrict of Columbia

Walter R. Jones, Jr. Federal Register Number39940037 Federal Medical Center -Rochester P.O. Box 4000 Rochester, MN 55903

App. 117

Exhibit A

The District of Columbia argues that the counts ofthe Complaint are not within the scope of any of thedispute resolution provisions at issue in this case,including the one contained in the 2005 Contract. Thatrelevant 2005 Contract clause directs that where “adispute arises under or relates to the contract . . . [a]claim by the District against the Contractor shall besubject to a written decision by the ContractingOfficer.” (See Pl.’s Hr’g Ex. 1, Tab 1A at 48 (emphasisadded).) The 2005 Contract goes on to define claim tomean

a written demand or written assertion by one ofthe contracting parties seeking, as a matter ofright, the payment of money in a sum certain,the adjustment or interpretation of contractterms, or other relief arising under or related tothe contract. A claim arising under a contract,unlike a claim relating to that contract, is aclaim that can be resolved under a contractclause that provides for the relief sought by theclaimant.

(Id. (emphasis added).)1

The dispute resolution clauses at issue in theTreasury Services Booklet (arbitration) and DepositAgreement (forum selection) sweep even more broadlyto include “[a]ny dispute or controversy concerning [the

1 The Court agrees with the District of Columbia that theallegations at issue in this case do not arise under the contract.

App. 118

District’s] use of Services2 described in this [TreasuryServices] Booklet . . . [,]” and “[a]ny action orproceeding regarding your account[,]” (DepositAgreement). (Def.’s Hr’g Ex. 19 at 61 (emphasis added);Ex. 28 at 41 (emphasis added).)

Without citing any legal authority, the Districtargues that although it maintained a bank accountwith BOA, its “claims would exist . . . whether theDistrict had an account there or not.” (Pl.’s Opp. At 16.)This argument, however, is rooted in the hypotheticalscenario where “District accounts were in another bankand Defendant [BOA] employees, acting in the scope oftheir employment . . . intentionally joined a conspiracyto use Defendant Bank to launder stolen Districtmoney by depositing it into conspirators’ accounts withDefendant [BOA] . . . .” (Id.)

Regardless of whether it is true that this lawsuitmight proceed even if the District had maintained theaccount involved here at another bank, those are notthe facts of the instant case. The District of Columbiadid and does maintain a Controlled DisbursementAccount at BOA. And, despite the District’s contentionthat “[i]t is [only] the cashing and/or depositing of thefraudulent checks into accounts of third parties thatgive rise to the allegations[,]” this assertion fails toacknowledge that the fraudulent checks were cashed onand monies withdrawn from the ControlledDisbursement Account at BOA with the help of a Bankofficial who knew the withdrawals were improper.Since the Controlled Disbursement Account is a Servicefor which the District has a contractual relationship

2 “Services” is defined to include Controlled Disbursement Services.

App. 119

with BOA, it is clear that the monies withdrawn fromit concern the Service, regard the account and relate tothe contract. In other words, the Court finds that thelanguage used in each of the clauses is broad enough toencompass claims raised in this case.3 (See Pl.’s Hr’gEx. 1, Tab 1A at 48 (“relates to the contract”); Def.’sHr’g Ex. 19 at 61 (“concerning your use of Services”);Def.’s Hr’g Ex. 28 at 41 (“regarding your account”).)

Having ruled that each of the dispute resolutionclauses is implicated, the only question for the Court iswhether, in light of all the documents before it, theparties agreed to arbitrate in North Carolina.

3 The allegations raised in Plaintiff’s First Amended Complaintsupport the Court’s conclusion. Plaintiff asserts that “[a]t allrelevant times, the District maintained a bank account withDefendant Bank. That account was used to issue checks, includingtax refund checks.” (Pl.’s First Am. Comp. ¶ 12, at 4.) Plaintifffurther maintains that Defendant Bank “owed a duty to theDistrict to keep the District’s funds secure from foreseeabletheft[,]” but that “Defendant Bank did not pay the fraudulent taxrefund checks or take them for value or for collection in good faith.”(Id. ¶ 99, 103, at 33-34.)

App. 120

Exhibit B

Exhibit B from Order Denying Bank of America’sMotion to Dismiss, or in the Alternative, Stay Based

on Forum Selection and Arbitration Clauses

Chronology of Key Documents(December 9, 2009)

[Fold-Out Exhibit, see next 11 pages]

2

Date Document Arbitration Clause Forum-Selection Clause

Governing Law Provision(s)

Merger Clause Controlling Document Clause

Severability/Amendment Clauses

July 1999

1999 Deposit Agreement

None.

“Any lawsuit regarding your account must be brought in a proper court in the State of North Carolina. You hereby submit to the personal jurisdiction of the State of North Carolina.” p. 23

“This agreement will be governed by the laws and regulations of the State of North Carolina and the United States.” p. 23

“This Deposit Agreement governs all deposit accounts established in North Carolina with Bank of America, N.A., or one of our predecessors, and replaces and supersedes any previous deposit agreements.” p. 1

None.

“A determination that any part of this agreement is invalid or unenforceable will not affect the remainder of this agreement.” p. 23 “We may amend this agreement, including our Schedule of Fees, by posting amendments in our offices or by sending you a notice. Your continued use of your account after the effective date of any amendment as stated in the notice, or after a reasonable time if no such date is stated, will constitute your acceptance of the terms of the amendment.” p. 23

3





July 1999

Treasury Services Booklet

“Any dispute or controversy concerning your use of Services described in this Booklet will be decided by arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the [AAA].” p. 41

None.

“[T]his Booklet is governed by and interpreted according to (i) U.S. federal law and (ii) the law of (A) the state in the [U.S.] in which the account . . . associated with such Service is located . . . .” p. 38

“This Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide you anywhere in the world and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement).” p. 37

Introduction Clause: “This Booklet contains the terms and conditions under which we provide you with worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions.” p. 7 “By signing and returning the ‘Authorization and Agreement’ form in the front of this Booklet, you agree to the ‘General Provisions’ section of this Booklet, which contains the terms and terms applicable to all Services. You also agree to those portions of the ‘Treasury Services’ and ‘MicroTrade Services’ sections of this Booklet which contain the specific terms and conditions that relate to the Services that we provide to you. . . . Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions and to follow the procedures in the applicable Materials.” p. 7 “This Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise).” p. 37

“If any provision of this Booklet or the application of any such provision to any person or set of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Booklet, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, are not impaired or otherwise affected and continue to be valid and enforceable to the fullest extent permitted by law.” p. 38

4





January 6, 2000

Certified Copy of Corporate Resolutions – Opening and Maintaining

Deposit Accounts and

Services

Authorizes CFO, Deputy CFO/Treasurer and Associate Treasurer to “on behalf of this Corporation and in its name, to execute and to sign any application, deposit agreement, signature card and any other documentation required by Bank to open said accounts … to enter into any agreements with the Bank for the provision by Bank of various Treasury Management services to this Corporation as such officer or employee may determine, in his or her sole discretion, and to sign any and all documents and take all actions required by Bank relative to such Treasury Management services or the performance of the Corporation’s obligations thereunder, and that any such Treasury Management agreement(s) shall remain in full force and effect until written notice to terminate given in accordance with the terms of any such agreement shall have been received by Bank and that such termination shall not affect any action taken by the Bank prior to such termination … to take whatever other actions or enter into whatever other agreements relating to the accounts or investment of funds in such accounts with Bank and to execute, amend, supplement and deliver to Bank such agreements on behalf of the Corporation upon such terms and conditions as such officer or employee may deem appropriate and to appoint and delegate, from time to time, such person(s) who may be authorized to enter into such agreements and take any other actions pursuant to such agreements in connection with said accounts that the officer or employee deems necessary . . . .”

Signed by CFO Valerie Holt.

January 6, 2000

Signature Card

“By signing below, the above named Corporation agrees that this account is and shall be governed by the terms and conditions set forth in the following documents, as amended from time to time: (1) the Deposit Agreement and Disclosures, (2) the Business Schedule of Fees, (3) the Miscellaneous Fees for Personal Accounts and the Corporation further acknowledges the receipt of these documents.

. . . I, the undersigned, hereby certify (1) I am the Secretary or Assistant Secretary of the Corporation named above, (2) the above named person(s) are those person(s) currently empowered to act under the

Corporate resolutions authorizing this account and the other banking services provided for therein, (3) that the title and specimen signature set forth opposite the name of each person are true and genuine, and (4) the Substitute Form W-9 certification.”

Signature Card (makes applicable the 1999 BOA Deposit Agreement) adds (1) CFO Valerie Holt, (2) Deputy CFO/Treasurer Dr. William Hall, (3) Associate Treasurer Craig Small and (4) Associate

Treasurer Lasana Mack as signatories. Signed by CFO Holt.

July 25, 2000

Signature Card

“By signing below, the above named Corporation agrees that this account is and shall be governed by the terms and conditions set forth in the following documents, as amended from time to time: (1) the Deposit Agreement and Disclosures, (2) the Business Schedule of Fees, (3) the Miscellaneous Fees for Personal Accounts and the Corporation further acknowledges the receipt of these documents.”

. . . I, the undersigned, hereby certify (1) I am the Secretary or Assistant Secretary of the Corporation named above, (2) the above named person(s) are those person(s) currently empowered to act under the

Corporate resolutions authorizing this account and the other banking services provided for therein, (3) that the title and specimen signature set forth opposite the name of each person are true and genuine, and (4) the Substitute Form W-9 certification.”

Signature Card (makes applicable the 1999 BOA Deposit Agreement) adds (1) CFO Dr. Natwar Gandhi, (2) Deputy CFO/Treasurer Dr. William Hall, (3) Associate Treasurer Lasana Mack and (4) Interim

Associate Treasurer Alcindor Rosier as signatories. Signed by CFO Gandhi.

September 25, 2000

Authorization

and Agreement for

Treasury Services

“The Client has received Bank of America’s Treasury Services Terms and Conditions Booklet (the ‘Booklet’) and agrees to adhere to the Booklet, any applicable User Documentation, set-up forms and related documents and other disclosures provided to the Client with regard to the provision of one or more Services from one or more of Bank of America Corporation’s subsidiary banks.

… The Booklet supersedes other agreement between the Client and the Bank, as described under the ‘General Matters’ heading in the Booklet, with regard to the provision of Services.”

Authorization and Agreement (makes applicable 1999 Treasury Services Booklet) signed by Acting Deputy CFO & Treasurer John Robinson and Interim Associate Treasurer and Banking Manager Alcindor

Rosier.

September 25, 2000

Authorization and

Agreement Certification

“If client is a governmental entity, the entity’s counsel must sign this Certification.”

Signed by Lasana Mack, Associate Treasurer.

5





November 1, 2001


“If you or we request, any controversy or claim (“controversy”) concerning your deposit account relationship with us, including any claim based on or arising from an alleged tort, will be determined by arbitration, reference, or trial by a judge . . . . A controversy that involves an amount in dispute of less than $1 Million will be determined by arbitration as described below. . . Since this Agreement touches and concerns interstate commerce, an arbitration under this Agreement will be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Agreement. Arbitration, including selection of an arbitrator, will be conducted in accordance with the then-current rules for arbitration of financial services disputes of J.A.M.S.” p. 67

“Any arbitration, lawsuit or other proceeding regarding your account must be brought in the state where we opened, or if different, currently maintain your account and you submit to the personal jurisdiction of that state.” p. 68

“Your and our rights and obligations under this Agreement are governed by and interpreted according to the laws of the state where we open your account and federal law. If state and federal law are inconsistent, federal law governs.” p. 1

None.

None.

“If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended by contract, you and we agree that this Agreement governs and that the law is amended by this Agreement. A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement.” p. 63 “We may change this Agreement at any time. For example: we may add new terms and conditions and we may delete or amend existing terms and conditions. We generally send you advance notice of the change. If a proposed change is favorable to you, however, we may make the change at any time without advance notice. If you do not agree with the proposed change, you may close your account. However, you indicate your agreement to the change if you continue to use your account or keep it open.” p. 1-2

6





May 22, 2002

DC’s Request for Proposal (Solicitation)

None.

“If a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the district against the Contractor shall be subject to a written decision by the Contracting Officer. . . . ‘Claim,’ as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. . . . [T]he decision of the Contracting Officer shall be final and conclusive and not subject to review by any forum, tribunal or Government agency.” p. 48

None.

None.

None.

None.

June 24, 2002

BOA’s RFP Response

Contains unsigned Signature Card, Authorization and Agreement for Treasury Services and Authorization and Agreement Certification

7





2004

Treasury Services Booklet

“Any dispute or controversy concerning your use of Services described in this Booklet will be decided by binding arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the [AAA].” p. 61

None.

“[T]his Booklet is governed by and interpreted according to (i) U.S. federal law and (ii) the law of (A) the state in the [U.S.] in which the account associated with such Service is located . . . .” p. 57

“[T]his Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide to you . . . and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement).” p. 56 NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.” p. 56

Introduction Clause: “This Booklet contains the terms and conditions under which we provide you worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions.” p. 6 “By signing and returning the [AA] form in the front of this Booklet, you agree to the General Provisions section of this Booklet (which contains terms and conditions applicable to all Services) . . . . You also agree to those portions of the Treasury Services and Electronic Trade Services sections of this Booklet which contain the specific terms and conditions that relate to the Services we provide to you. . . . Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions, as amended from time to time, and to follow the procedures in the applicable Materials.” p. 6 “This Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise) . . . .” p. 56

“If any provision of this Booklet or the application of any such provision to any person or set of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Booklet, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, are not impaired or otherwise affected and continue to be valid and enforceable to the fullest extent permitted by law.” p. 57

8





April 2005

Revised RFP Response/Best

and Final Offer (BAFO)

Contains unsigned Signature Card, Authorization and Agreement for Treasury Services, Authorization and Agreement Certification and Certified Copy of Unincorporated Association Resolutions – Opening and Maintaining Deposit Accounts and Services (Edmund Bianchi testified this was a mistake – Certified Copy of Corporate Resolutions – Opening and Maintaining Deposit Accounts and Services should

have been included).

November 1, 2005

Signature Card

“AUTHORIZATION You begin or continue a deposit account relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and

obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution. …

AGREEMENT By signing below, the organization first listed above (‘Organization’) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are

duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us.”

Signature Card removes signatory Deputy CFO and Treasurer Anthony Calhoun as a signatory to the account. Signed by Alcindor Rosier. November 13, 2005

2005 Contract

List of Specifically Incorporated Documents includes both BOA’s RFP Response and the Revised RFP Response/BAFO and the following Merger Clause: “This contract, including specifically incorporated documents, constitutes the total and entire agreement between the parties. All previous discussions, writings, and agreements are merged herein.” p. 3

Signed by Angela Long, Contracting Officer, Office of Chief Financial Officer

9





December 1, 2005


“[Y]ou have the right to compel us at your option, and we have the right to compel you at our option, to determine any individual Claim with a value of less than $1 Million by arbitration. All other Claims will be resolved in court by a judge without a jury. . . . [T]he arbitration of any matter involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the ‘FAA’).” p. 78, 80

“Any action regarding your account must be brought in the state whose law governs or controls your account. You submit to the personal jurisdiction of that state, unless a Claim is submitted to arbitration and that location is not reasonably convenient for you, in which case you and we will attempt to agree on a location, and if unable to do so, then the location will be determined by the Administrator or arbitrator.” p. 81

“Your and our rights and obligations under this Agreement are governed by and interpreted according to the laws of the state where we open your account and federal law. If state and federal law are inconsistent, or if state law is preempted by federal law, federal law governs.” p. 4

“The current version of this Agreement supersedes all prior versions and contains the terms governing your account.” p. 2

None.

“If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended by contract, you and we agree that this Agreement governs and that the law is amended by this Agreement. A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement.” p. 75 “We may change this Agreement at any time. We may add new terms and conditions and we may delete or amend existing terms and conditions. We generally send you advance notice of an adverse change. (See Notices in the Statements and Notices section.) If a change is not adverse to you, however, we may make the change at any time without advance notice. If you do not agree with the change, you may close your account. However, if you continue to use your account or keep it open, you accept and agree to the change.” p. 2

March 6, 2006

Authorization

and Agreement for

Treasury Services

“The Client has received Bank of America’s Treasury Services Terms and Conditions Booklet (the ‘Booklet’) and agrees to adhere to the Booklet and any applicable User Documentation from Bank of

America (‘Bank’). …

“The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services.”

Authorization and Agreement (makes applicable 2004 Treasury Services Booklet) signed by Deputy CFO and Treasurer Lasana Mack.

March 6, 2006

Authorization and

Agreement Certification

If client is governmental entity, “the entity’s counsel, or any other individual as permitted by the entity’s organizational documents” may sign.

Signed by Ulysses Glen, Jr., Chief of Staff

10





April 17, 2006

Signature Card





Signature Card adding (1) Deputy CFO/Treasurer Lasana Mack, (2) Acting Associate Treasurer George Rivera and (3) Associate Treasurer Craig Small as signatories. Signed by Lasana K. Mack. October 31,

2006 2005 Contract

Extension/ Modification

Contract Extended from 11/13/06 to 11/12/07 Signed by Eric L. Payne, Esq., DC Contracting Officer on 11/13/06

March 5,

2007

Commercial Segment

Declaration for Public Entities

Signed by Deputy CFO and Treasurer Lasana K. Mack

November 8, 2007

2005 Contract Extension/

Modification

Contract Extended from 11/13/07 to 12/13/07 Signed by Eric L. Payne, Esq., DC Contracting Officer on 11/08/07

December 12, 2007

2005 Contract

Extension/ Modification

October 10, 2007 Letter from Dorothy Whisler, Contract Specialist to Edmund Bianchi (Sr. Vice President) advising BOA of another Contract extension, notes as follows: “The subject contract executed between Bank of America and the Government of the District of Columbia, Office of the Chief Financial Officer, which provides demand deposit accounts for the Controlled Disbursement Account

Services . . . .”

Contract Extended from 12/14/07 to 11/12/08 Signed by Paul Lindquist for Eric L. Payne, Esq., DC Contracting Officer on 12/12/07

December 28, 2007

Signature Card

“AUTHORIZATION You begin or continue a deposit relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your

agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution.

… AGREEMENT

By signing below, the organization first listed above (“Organization”) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us.”

Signature Card deleting Amy Kresse as signatory. Signed by Gloria Vines, District’s Banking Services

11





February 2008


“[Y]ou have the right to compel us at your option, and we have the right to compel you at our option, to determine any individual claim with a value of less than $1 Million by arbitration. All other claims will be resolved in court by a judge without a jury. … [T]he arbitration of any matter involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the ‘FAA’).” p. 40-41

“Any action or proceeding regarding your account or this Agreement must be brought in the state in which the Banking Center that maintains your account is located. You submit to the personal jurisdiction of that state, unless a Claim is submitted to arbitration and that location is not reasonably convenient for you, in which case you and we will attempt to agree on a location, and if unable to do so, then the location will be determined by the Administrator or arbitrator.” p. 41

“This agreement, and your and our rights and obligations under this Agreement, are governed by and interpreted according to federal law and the law of the state in which the Banking Center that maintains your account is located. We generally maintain your account at the Banking Center where we open your account. However, we may transfer your account to another Banking Center in the same state or in a different state. If state and federal law are inconsistent, or if the state law is preempted by federal law, federal law governs.” p. 2

“If we change this Agreement, the then-current version of this Agreement supersedes all prior versions and contains the terms governing our account.” p. 2

DC Argues the following is a Controlling Document Clause: “In the event of a conflict or inconsistency between this Resolving Disputes section and other terms of the Agreement or the applicable rules of the Administrator, this Resolving Disputes section will govern. If there is any conflict between this Resolving Disputes section and any other dispute provision (whether it be for arbitration, reference or any other form of dispute resolution), this Resolving Disputes section will prevail for Claims* arising out of this Agreement or the transaction(s) contemplated by this Agreement.” p. 41 * “Claim means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement and your deposit relationship with us (including any renewals, extensions or modifications), except provisional or ancillary remedies from a court of competent jurisdiction, the exercise of which will not waive the right to arbitration or reference. Claim does not include any action that is brought in a small claims court or an equivalent court, provided that Claim does include any such action that is transferred, removed or appealed to a different court.” p. 40

“A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement.

… If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended or waived by contract, you and we agree that this Agreement governs and that the law is amended or waived by this Agreement.” p. 34 “We may change this Agreement at any time. We may add new terms and conditions and we may delete or amend existing terms and conditions. We may add new accounts and services and discontinue existing accounts or services. We may convert your existing accounts and services into new accounts and services. We generally send you advance notice of an adverse change. However, we may change this Agreement without prior notice unless otherwise required by law. We do not have to notify you of changes that we believe are beneficial to you or changes that we make for security reasons.” p. 2

12





August 13, 2008

Remote Deposit Service

Amendment to the Treasury

Services Terms and Conditions

Booklet

Signed by Gloria Vines, DC Banking Relations Manager

October 31, 2008

Lawsuit Filed

November 11, 2008

2005 Contract Extension/

Modification

Contract Extended from 11/13/08 to 11/12/09 or date of new contract, whichever comes first Signed by Dorothy Whisler Fortune, DC Contracting Officer on 11/11/08

July 24, 2009

Signature Card





Signature Card adding (1) Deputy CFO/Treasurer Lasana Mack, (2) Associate Treasurer Jeff Barnette, (3) Associate Treasurer Clarice Wood, (4) Cash and Investment Manager John Henry, (5) Banking Relations Manager Gloria Vines, (6) Associate Treasurer Ritta McLaughlin and (7) Debt Manager Debra Taylor as signatories. Signed by Lasana K. Mack.

App. 121

APPENDIX C

CONSTITUTION, STATUTES AND RULES

United States Constitution, Article VI, Clause 2(Supremacy Clause)

This Constitution, and the Laws of the United Stateswhich shall be made in Pursuance thereof; and allTreaties made, or which shall be made, under theAuthority of the United States, shall be the supremeLaw of the Land; and the Judges in every State shall bebound thereby, any Thing in the Constitution or Lawsof any State to the Contrary notwithstanding.

Title 9, United States Code, Section 2 (9 U.S.C.§ 2). Validity, irrevocability, and enforcement ofagreements to arbitrate.

A written provision in any maritime transaction or acontract evidencing a transaction involving commerceto settle by arbitration a controversy thereafter arisingout of such contract or transaction, or the refusal toperform the whole or any part thereof, or an agreementin writing to submit to arbitration an existingcontroversy arising out of such a contract, transaction,or refusal, shall be valid, irrevocable, and enforceable,save upon such grounds as exist at law or in equity forthe revocation of any contract.

App. 122

Title 9, United States Code, Section 3 (9 U.S.C.§ 3). Stay of proceedings where issue thereinreferable to arbitration.

If any suit or proceeding be brought in any of the courtsof the United States upon any issue referable toarbitration under an agreement in writing for sucharbitration, the court in which such suit is pending,upon being satisfied that the issue involved in such suitor proceeding is referable to arbitration under such anagreement, shall on application of one of the partiesstay the trial of the action until such arbitration hasbeen had in accordance with the terms of theagreement, providing the applicant for the stay is notin default in proceeding with such arbitration.

D.C. Code § 1-204.24a. In general.

(a) Establishment. -- There is hereby established withinthe executive branch of the government of the Districtof Columbia an Office of the Chief Financial Officer ofthe District of Columbia (hereafter referred to as the“Office”), which shall be headed by the Chief FinancialOfficer of the District of Columbia (hereafter referredto as the “Chief Financial Officer”).

(b) Organizational analysis. --

(1) Office of Budget and Planning. -- The nameof the Office of Budget and Management,established by Commissioner’s Order 69-96, issuedMarch 7, 1969, is changed to the Office of Budgetand Planning.

(2) Office of Tax and Revenue. -- The name of theDepartment of Finance and Revenue, established by

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Commissioner’s Order 69-96, issued March 7, 1969,is changed to the Office of Tax and Revenue.

(3) Office of Finance and Treasury. -- The nameof the Office of Treasurer, established by Mayor’sOrder 89-244, dated October 23, 1989, is changed tothe Office of Finance and Treasury.

(4) Office of Financial Operations and Systems. --The Office of the Controller, established by Mayor’sOrder 89-243, dated October 23, 1989, and theOffice of Financial Information Services, establishedby Mayor’s Order 89-244, dated October 23, 1989,are consolidated into the Office of FinancialOperations and Systems.

(c) Transfers. -- Effective with the appointment of thefirst Chief Financial Officer under § 1-204.24b, thefunctions and personnel of the following offices areestablished as subordinate offices within the Office:

(1) The Office of Budget and Planning, headedby the Deputy Chief Financial Officer for the Officeof Budget and Planning.

(2) The Office of Tax and Revenue, headed by theDeputy Chief Financial Officer for the Office of Taxand Revenue.

(3) The Office of Research and Analysis, headedby the Deputy Chief Financial Officer for the Officeof Research and Analysis.

(4) The Office of Financial Operations andSystems, headed by the Deputy Chief FinancialOfficer for the Office of Financial Operations andSystems.

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(5) The Office of Finance and Treasury, headedby the District of Columbia Treasurer.

(6) The Lottery and Charitable Games ControlBoard, established by Chapter 13 of Title 3.

(d) Supervisor. -- The heads of the offices listed insubsection (c) of this section shall serve at the pleasureof the Chief Financial Officer.

(e) Appointment and removal of office employees. -- TheChief Financial Officer shall appoint the heads of thesubordinate offices designated in subsection (c) of thissection, after consultation with the Mayor and theCouncil. The Chief Financial Officer may remove theheads of the offices designated in subsection (c) of thissection, after consultation with the Mayor and theCouncil.

(f) Annual budget submission. -- The Chief FinancialOfficer shall prepare and annually submit to the Mayorof the District of Columbia, for inclusion in the annualbudget of the District of Columbia government for afiscal year, annual estimates of the expenditures andappropriations necessary for the year for the operationof the Office and all other District of Columbiaaccounting, budget, and financial managementpersonnel (including personnel of executive branchindependent agencies) that report to the Officepursuant to this chapter.

D.C. Code § 1-204.24d. Duties of the ChiefFinancial Officer.

Notwithstanding any provisions of this chapter whichgrant authority to other entities of the District

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government, the Chief Financial Officer shall have thefollowing duties and shall take such steps as arenecessary to perform these duties:

(1) During a control year, preparing the financial planand the budget for the use of the Mayor for purposes ofpart B of subchapter VII of Chapter 3 of Title 47.

(2) Preparing the budgets of the District of Columbiafor the year for the use of the Mayor for purposes ofpart D of this subchapter, and preparing the 5-yearfinancial plan based upon the adopted budget forsubmission with the District of Columbia budget by theMayor to Congress.

(3) During a control year, assuring that all financialinformation presented by the Mayor is presented in amanner, and is otherwise consistent with, therequirements of parts A through E of subchapter VII ofChapter 3 of Title 47.

(4) Implementing appropriate procedures andinstituting such programs, systems, and personnelpolicies within the Chief Financial Officer’s authority,to ensure that budget, accounting, and personnelcontrol systems and structures are synchronized forbudgeting and control purposes on a continuing basisand to ensure that appropriations are not exceeded.

(5) Preparing and submitting to the Mayor and theCouncil, with the approval of the Authority during acontrol year, and making public--

(A) annual estimates of all revenues of the Districtof Columbia (without regard to the source of suchrevenues), including proposed revenues, which shallbe binding on the Mayor and the Council for

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purposes of preparing and submitting the budget ofthe District government for the year under part Dof this subchapter, except that the Mayor and theCouncil may prepare the budget based on estimatesof revenues which are lower than those prepared bythe Chief Financial Officer; and

(B) quarterly re-estimates of the revenues of theDistrict of Columbia during the year.

(6) Supervising and assuming responsibility forfinancial transactions to ensure adequate control ofrevenues and resources.

(7) Maintaining systems of accounting and internalcontrol designed to provide--

(A) full disclosure of the financial impact of theactivities of the District government;

(B) adequate financial information needed by theDistrict government for management purposes;

(C) effective control over, and accountability for, allfunds, property, and other assets of the District ofColumbia; and

(D) reliable accounting results to serve as the basisfor preparing and supporting agency budgetrequests and controlling the execution of thebudget.

(8) Submitting to the Council a financial statement ofthe District government, containing such details and atsuch times as the Council may specify.

(9) Supervising and assuming responsibility for theassessment of all property subject to assessment and

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special assessments within the corporate limits of theDistrict of Columbia for taxation, preparing tax maps,and providing such notice of taxes and specialassessments (as may be required by law).

(10) Supervising and assuming responsibility for thelevying and collection of all taxes, special assessments,licensing fees, and other revenues of the District ofColumbia (as may be required by law), and receiving allamounts paid to the District of Columbia from anysource (including the Authority).

(11) Maintaining custody of all public funds belongingto or under the control of the District government (orany department or agency of the District government),and depositing all amounts paid in such depositoriesand under such terms and conditions as may bedesignated by the Council (or by the Authority duringa control year).

(12) Maintaining custody of all investment andinvested funds of the District government or inpossession of the District government in a fiduciarycapacity, and maintaining the safekeeping of all bondsand notes of the District government and the receiptand delivery of District government bonds and notes fortransfer, registration, or exchange.

(13) Apportioning the total of all appropriations andfunds made available during the year for obligation soas to prevent obligation or expenditure in a mannerwhich would result in a deficiency or a need forsupplemental appropriations during the year, and(with respect to appropriations and funds available foran indefinite period and all authorizations to createobligations by contract in advance of appropriations)

App. 128

apportioning the total of such appropriations, funds, orauthorizations in the most effective and economicalmanner.

(14) Certifying all contracts and leases (whetherdirectly or through delegation) prior to execution as tothe availability of funds to meet the obligationsexpected to be incurred by the District governmentunder such contracts and leases during the year.

(15) Prescribing the forms of receipts, vouchers, bills,and claims to be used by all agencies, offices, andinstrumentalities of the District government.

(16) Certifying and approving prior to payment of allbills, invoices, payrolls, and other evidences of claims,demands, or charges against the District government,and determining the regularity, legality, andcorrectness of such bills, invoices, payrolls, claims,demands, or charges.

(17) In coordination with the Inspector General of theDistrict of Columbia, performing internal audits ofaccounts and operations and records of the Districtgovernment, including the examination of any accountsor records of financial transactions, giving dueconsideration to the effectiveness of accountingsystems, internal control, and related administrativepractices of the departments and agencies of theDistrict government.

(18) Exercising responsibility for the administrationand supervision of the District of Columbia Treasurer.

(19) Supervising and administering all borrowingprograms for the issuance of long-term and short-term

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indebtedness, as well as other financing-relatedprograms of the District government.

(20) Administering the cash management program ofthe District government, including the investment ofsurplus funds in governmental and non-governmentalinterest-bearing securities and accounts.

(21) Administering the centralized District governmentpayroll and retirement systems (other than theretirement system for police officers, fire fighters, andteachers).

(22) Governing the accounting policies and systemsapplicable to the District government.

(23) Preparing appropriate annual, quarterly, andmonthly financial reports of the accounting andfinancial operations of the District government.

(24) Not later than 120 days after the end of each fiscalyear, preparing the complete financial statement andreport on the activities of the District government forsuch fiscal year, for the use of the Mayor under § 1-204.48(a)(4).

(25) Preparing fiscal impact statements on regulations,multiyear contracts, contracts over $1,000,000 and onlegislation, as required by § 1-301.47a.

(26) Preparing under the direction of the Mayor, whohas the specific responsibility for formulating budgetpolicy using Chief Financial Officer technical andhuman resources, the budget for submission by theMayor to the Council and to the public and upon finaladoption to Congress and to the public.

App. 130

(27) Certifying all collective bargaining agreements andnonunion pay proposals prior to submission to theCouncil for approval as to the availability of funds tomeet the obligations expected to be incurred by theDistrict government under such collective bargainingagreements and nonunion pay proposals during theyear.

(28) With respect to attorneys in special educationcases brought under the Individuals with DisabilitiesEducation Act in the District of Columbia during fiscalyear 2006 and each succeeding fiscal year--

(A) requiring such attorneys to certify in writingthat the attorney or representative of the attorneyrendered any and all services for which the attorneyreceived an award in such a case, including thosereceived under a settlement agreement or as part ofan administrative proceeding, from the District ofColumbia;

(B) requiring such attorneys, as part of thecertification under subparagraph (A) of thisparagraph, to disclose any financial, corporate,legal, membership on boards of directors, or otherrelationships with any special education diagnosticservices, schools, or other special education serviceproviders to which the attorneys have referred anyclients in any such cases; and

(C) preparing and submitting quarterly reports tothe Committees on Appropriations of the House ofRepresentatives and Senate on the certification ofand the amount paid by the government of theDistrict of Columbia, including the District ofColumbia Public Schools, to such attorneys.

App. 131

Former D.C. Code § 2-301.04 (repealed April 8,2011). Application of chapter.

(a) Except as provided in § 2-303.20, this chapter shallapply to all departments, agencies, instrumentalities,and employees of the District government, includingagencies which are subordinate to the Mayor,independent agencies, boards, and commissions, butexcluding the Council of the District of Columbia,District of Columbia courts, the District of ColumbiaFinancial Responsibility and Management AssistanceAuthority, and (to the extent described in § 1-204.26)the Office of the Chief Financial Officer of the Districtof Columbia, and District of Columbia AdvisoryNeighborhood Commissions.

(b) This chapter shall apply to any contract forprocurement of goods and services, includingconstruction and legal services, but shall not apply toa contract or agreement receiving or making grants-in-aid or for federal financial assistance.

(c) The Council of the District of Columbia, theCorporation Counsel, Inspector General, Auditor, andChief Financial Officer may contract for the services ofaccountants, lawyers, and other experts when theydetermine and state in writing that good reason existswhy such services should be procured independently ofthe CPO.

(d) Repealed.

App. 132

Former D.C. Code § 2-308.03 (repealed April 8,2011). Claims by District government againstcontractor.

(a) (1) All claims by the District government againsta contractor arising under or relating to acontract shall be decided by the contractingofficer who shall issue a decision in writing, andfurnish a copy of the decision to the contractor.

(2) The decision shall be supported by reasonsand shall inform the contractor of his or herrights as provided in this subchapter. Specificfindings of fact are not required, but, if made,shall not be binding in any subsequentproceeding.

(3) The authority of this subsection shall notapply to a claim or dispute for penalties orforfeitures prescribed by statute or regulationwhich another District government agency isspecifically authorized to administer, settle, ordetermine.

(4) This subsection shall not authorize thecontracting officer to settle, compromise, pay, orotherwise adjust any claim involving fraud.

(b) The decision of the contracting officer shall be finaland not subject to review unless an administrativeappeal or action for judicial review is timelycommenced as authorized by § 2-309.04.

(c) Nothing in this subchapter shall prohibit thecontracting officer from including a clause in Districtgovernment contracts requiring that pending finaldecision of an appeal, action, or final settlement, a

App. 133

contractor shall proceed diligently with performance ofthe contract in accordance with the decision of thecontracting officer.

D.C. Code. § 2-381.02 (formerly codified as D.C.Code § 2-308.14). False claims liability, trebledamages, costs, and civil penalties; exceptions.

(a) Any person who commits any of the following actsshall be liable to the District for 3 times the amount ofdamages which the District sustains because of the actof that person. A person who commits any of thefollowing acts shall also be liable to the District for thecosts of a civil action brought to recover penalties ordamages, and shall be liable to the District for a civilpenalty of not less than $5,500, and not more than$11,000, for each false or fraudulent claim for whichthe person:

(1) Knowingly presents, or causes to be presented,a false or fraudulent claim for payment or approval;

(2) Knowingly makes, uses, or causes to be made orused, a false record or statement material to a falseor fraudulent claim;

(3) Has possession, custody, or control of property ormoney used, or to be used, by the District andknowingly delivers, or causes to be delivered, lessthan all of that money or property;

(4) Is authorized to make or deliver a documentcertifying receipt of property used, or to be used, bythe District and, intending to defraud the District,makes or delivers the receipt without completelyknowing that the information on the receipt is true;

App. 134

(5) Knowingly buys, or receives as a pledge of anobligation or debt, public property from an officer oremployee of the District who lawfully may not sellor pledge property;

(6) Knowingly makes, uses, or causes to be made orused, a false record or statement material to anobligation to pay or transmit money or property tothe District, or knowingly conceals or knowinglyand improperly avoids or decreases an obligation topay or transmit money or property to the District;

(7) Conspires to commit a violation of paragraph (1),(2), (3), (4), (5), or (6) of this subsection;

(8) Is a beneficiary of an inadvertent submission ofa false or fraudulent claim to the District,subsequently discovers the falsity of the claim, andfails to disclose the false or fraudulent claim to theDistrict; or

(9) Is the beneficiary of an inadvertent payment oroverpayment by the District of monies not due andknowingly fails to repay the inadvertent payment oroverpayment to the District.

(b) Notwithstanding subsection (a) of this section, thecourt may assess not more than two times the amountof damages which the District sustains because of theact of the person, and there shall be no civil penalty, ifthe court finds all of the following:

(1) The person committing the violation furnishedofficials of the District responsible for investigatingfalse claims violations with all information knownto that person about the violation within 30 days

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after the date on which the person first obtained theinformation;

(2) The person fully cooperated with anyinvestigation by the District; and

(3) At the time the person furnished the Districtwith information about the violation, no criminalprosecution, civil action, or administrative actionhad commenced with respect to the violation, andthe person did not have actual knowledge of theexistence of an investigation into the violation.

(c) Liability pursuant to this section shall be joint andseveral for any act committed by 2 or more persons.

(d) This section shall not apply to claims, records, orstatements made pursuant to those portions of Title 47that refer or relate to taxation.

D.C. Code § 2-381.03 (formerly codified as D.C.Code § 2-308.15). Attorney General for theDistrict of Columbia investigations andprosecutions; powers of prosecuting authority;civil actions by individuals as qui tam plaintiffs;jurisdiction of courts.

(a) The Attorney General for the District of Columbiashall investigate, with such assistance from otherDistrict agencies as may be required, violationspursuant to § 2-381.02 involving District funds. If theAttorney General for the District of Columbia findsthat a person has violated or is violating the provisionsof § 2-381.02, the Attorney General for the District ofColumbia may bring a civil action against that personin the Superior Court of the District of Columbia.

App. 136

(b)(1) A person may bring a civil action for a violationof § 2-381.02 for the person and for the District. Theaction shall be brought in the name of the District. Theperson bringing the action shall be referred to as thequi tam plaintiff. The action may be dismissed only ifthe court and the Attorney General for the District ofColumbia give written consent to the dismissal andtheir reasons for consenting.

(2) A complaint filed by a qui tam plaintiff pursuantto this subsection shall be filed in the SuperiorCourt in camera and may remain under seal for upto 180 days, unless the seal is extended by thecourt. No service shall be made on the defendantuntil after the complaint is unsealed.

(3) On the same day as the complaint is filedpursuant to paragraph (2) of this subsection, the quitam plaintiff shall serve the Attorney General forthe District of Columbia by mail, return receiptrequested, with a copy of the complaint and awritten disclosure of substantially all materialevidence and information the person possesses.

(4) Within 180 days after receiving a complaintalleging violations involving District funds, theAttorney General for the District of Columbia shalldo either of the following:

(A) Notify the court that he or she intends toproceed with the action, in which case the sealmay be lifted unless, for good cause shown, thecourt continues the seal; or

(B) Notify the court that he or she declines totake over the action, in which case the seal shall

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be lifted and the qui tam plaintiff shall have theright to conduct the action.

(5) Upon a showing of good cause, the AttorneyGeneral for the District of Columbia may move thecourt for extensions of the time during which thecomplaint remains under seal.

(6) When a qui tam plaintiff brings an actionpursuant to this subsection, no person other thanthe District may intervene or bring a related actionbased on the facts underlying the pending action.

(7) The District is not liable for expenses which aqui tam plaintiff incurs in bringing an action underthis section.

(c)(1) No person may bring an action pursuant tosubsection (b) of this section against a member of theCouncil of the District of Columbia, a member of theDistrict judiciary, or an elected official in the executivebranch of the District, if the action is based on evidenceor information known to the District when the actionwas brought.

(2) No person may bring an action under subsection(b) of this section which is based upon allegations ortransactions which are the subject of a civil suit oran administrative civil money penalty proceeding inwhich the District is already a party.

(c-1)(1) Except as provided in paragraph (2) of thissubsection, a court shall dismiss an action or claimunder this section if substantially the same allegationsor transactions as alleged in the action or claim werepublicly disclosed:

App. 138

(A) In a criminal, civil, or administrative hearingin which the District or its agent is a party;

(B) In a report, hearing, audit, or investigationby the Council of the District of Columbia, theAuditor of the District of Columbia, theInspector General of the District of Columbia, orother District agency; or

(C) By the news media.

(2) A court shall not dismiss an action or claim asprovided in paragraph (1) of this subsection if:

(A) The action is brought by the AttorneyGeneral for the District of Columbia;

(B) The District is opposed to the dismissal; or

(C) The action is brought by a qui tam plaintiffand the qui tam plaintiff is an original source ofthe information.

(d)(1) If the District proceeds with the action, it shallhave the primary responsibility for prosecuting theaction, and shall not be bound by an act of the qui tamplaintiff. The qui tam plaintiff shall have the right tocontinue as a party to the action, subject to thelimitations set forth in paragraph (2) of this subsection.

(2)(A) The District may dismiss the actionnotwithstanding the objections of the qui tamplaintiff if the qui tam plaintiff has been notified bythe District of the filing of the motion to dismissand the court has provided the qui tam plaintiffwith an opportunity for a hearing on the motion.

App. 139

(B) The District may settle the action with thedefendant, notwithstanding the objections of thequi tam plaintiff, if the court determines, after ahearing providing the qui tam plaintiff anopportunity to be heard, that the proposedsettlement is fair, adequate, and reasonableunder all the circumstances. Upon a showing ofgood cause, the hearing may be held in camera.

(C) Upon a showing by the District thatunrestricted participation during the course ofthe litigation by the qui tam plaintiff wouldinterfere with or unduly delay the District’sprosecution of the case, or would be repetitious,irrelevant, or for purposes of harassment, thecourt may, in its discretion, impose limitationson the qui tam plaintiffs participation, such as:

(i) Limiting the number of witnesses the quitam plaintiff may call;

(ii) Limiting the length of the testimony ofsuch witnesses;

(iii) Limiting the qui tam plaintiff’s cross-examination of witnesses; or

(iv) Otherwise limiting the participation bythe qui tam plaintiff in the litigation.

(D) Upon a showing by the defendant thatunrestricted participation during the course ofthe litigation by the qui tam plaintiff would befor purposes of harassment or would cause thedefendant undue burden or unnecessaryexpense, the court may, in its discretion, limitthe participation by the qui tam plaintiff.

App. 140

(e)(1) If the District elects not to proceed and the quitam action was proper pursuant to subsection (c) of thissection, the qui tam plaintiff shall have the same rightto conduct the action as the Attorney General for theDistrict of Columbia would have had if he or she hadchosen to proceed pursuant to subsection (b) of thissection. If the District so requests, the District shall beserved with copies of all pleadings filed in the action.

(2) When the qui tam plaintiff proceeds with theaction, the court, without limiting the status andrights of the qui tam plaintiff, may neverthelesspermit the District to intervene at a later date upona showing of good cause.

(f)(1)(A) If the District proceeds with an action broughtby a qui tam plaintiff pursuant to subsection (b) of thissection, the qui tam plaintiff, subject to subparagraph(B) of this paragraph, shall receive at least 15%, butnot more than 25%, of the proceeds of the action orsettlement of the claim, depending upon the extent towhich the qui tam plaintiff substantially contributed tothe prosecution of the action.

(B) Where the action is one which the court findsto be based primarily on disclosures of specificinformation, other than information provided bythe qui tam plaintiff, relating to allegations ortransactions in a criminal, civil, oradministrative hearing, in a report, hearing,audit, or investigation conducted by a Districtagency, or from the news media, the court mayaward such sums as it considers appropriate,but in no case more than 10% of the proceeds,taking into account the significance of the

App. 141

information and the role of the qui tam plaintiffin advancing the case to litigation.

(C) Any payment to a qui tam plaintiff underthis paragraph shall be made from the proceedsof the judgment or the settlement of the claim.Any qui tam plaintiff receiving a payment underthis paragraph shall also receive an amount forreasonable expenses which the court finds tohave been necessarily incurred, plus reasonableattorney’s fees and costs. All such expenses, fees,and costs shall be awarded against thedefendant.

(2)(A) If the District does not proceed with an actionbrought by a qui tam plaintiff pursuant tosubsection (b) of this section, the qui tam plaintiffshall receive an amount which the court decides isreasonable for collecting the civil penalty anddamages; provided, that the amount shall be notless than 25%, and not more than 30%, of theproceeds of the action or settlement of the claim.

(B) Any payment to a qui tam plaintiff underthis paragraph shall be made from the proceedsof the judgment or the settlement of the claim.Any qui tam plaintiff receiving a payment underthis paragraph shall also receive an amount forreasonable expenses which the court finds tohave been necessarily incurred, plus reasonableattorney’s fees and costs. All such expenses, fees,and costs shall be awarded against thedefendant.

App. 142

(3) The portion of the recovery not distributedpursuant to paragraphs (1) and (2) of thissubsection shall be paid to the District treasury.

(4)(A) Whether or not the District proceeds with theaction, if the court finds that the action was broughtby a qui tam plaintiff who planned and initiated theviolation of § 2-381.02 upon which the action wasbrought, then the court may, to the extent the courtconsiders appropriate, reduce the share of theproceeds of the action which the qui tam plaintiffwould otherwise receive under paragraph (1) or (2)of this subsection, taking into account the role of thequi tam plaintiff in advancing the case to litigationand any relevant circumstances pertaining to theviolation.

(B) If the qui tam plaintiff is convicted ofcriminal conduct arising from his or her role inthe violation of § 2-381.02, the qui tam plaintiffshall be dismissed from the civil action and shallnot receive any share of the proceeds of theaction. Such dismissal shall not prejudice theright of the District to continue the action,represented by the Attorney General for theDistrict of Columbia.

(5) If the District does not proceed with the actionand the qui tam plaintiff conducts the action, thecourt may award to the defendant reasonableattorneys fees and expenses necessarily incurred ifthe defendant prevails in the action and the courtfinds that the claim of the qui tam plaintiff wasfrivolous, vexatious, or brought solely for purposesof harassment.

App. 143

(6)(A) Notwithstanding subsection (b) of thissection, the District may elect to pursue a violationof § 2-381.02 through any alternate remedyavailable to the District, including anadministrative proceeding to determine a civilmoney penalty. If any such alternate remedy ispursued in another proceeding, the qui tam plaintiffshall have the same rights in such proceeding assuch person would have had if the qui tam actionhad continued under this section. Any finding offact or conclusion of law made in such otherproceeding that has become final shall be conclusiveon all parties to an action under this section.

(B) For the purposes of this paragraph, a findingor conclusion is final if it has been finallydetermined on appeal to the appropriate court,if all time for filing such an appeal with respectto the finding or conclusion has expired, or if thefinding or conclusion is not subject to judicialreview.

(g)(1) Whether or not the District proceeds with theaction, upon a showing by the District that certainactions of discovery by the qui tam plaintiff wouldinterfere with the investigation or prosecution of acriminal or civil matter by the District or a criminalmatter in the District of Columbia arising out of thesame facts, the court may stay such discovery for aperiod of not more than 60 days.

(2) Upon a further showing that the District or theUnited States Attorney’s Office for the District ofColumbia has pursued the criminal or civilinvestigation or proceedings with reasonablediligence and any proposed discovery in the qui tam

App. 144

action will interfere with the ongoing criminal orcivil investigation or proceedings, the court mayextend the stay of discovery provided for inparagraph (1) of this subsection.

(3) Any showing provided for under this subsectionshall be conducted in camera.

D.C. Appropriations Act 2006, 109 Pub. L. No. 115,§ 132, 119 Stat. 2396, 2522 (2005)

SEC. 132. The entire process used by the ChiefFinancial Officer to acquire any and all kinds of goods,works and services by any contractual means,including but not limited to purchase, lease or rental,shall be exempt from all of the provisions of the Districtof Columbia’s Procurement Practices Act: Provided,That provisions made by this subsection shall takeeffect as if enacted in D.C. Law 11-259 and shallremain in effect until September 30, 2006.

American Arbitration Association, CommercialArbitration Rules, Rule R-7.

R-7. Jurisdiction.

(a) The arbitrator shall have the power to rule on hisor her own jurisdiction, including any objections withrespect to the existence, scope or validity of thearbitration agreement.

(b) The arbitrator shall have the power to determinethe existence or validity of a contract of which anarbitration clause forms a part. Such an arbitrationclause shall be treated as an agreement independent ofthe other terms of the contract. A decision by the

App. 145

arbitrator that the contract is null and void shall notfor that reason alone render invalid the arbitrationclause.

(c) A party must object to the jurisdiction of thearbitrator or to the arbitrability of a claim orcounterclaim no later than the filing of the answeringstatement to the claim or counterclaim that gives riseto the objection. The arbitrator may rule on suchobjections as a preliminary matter or as part of thefinal award.

Financial Management and Control Order No. 97-15

Chapter 1, Section A.3

The Authority is statutorily exempted from adhering toD.C. Code procurement provisions and, because theAuthority is not an agency of the United Statesgovernment, the Armed Services Procurement Act of1947 and the Federal Property and AdministrationService Act of 1949 do not apply to the Authority’scontracting activities. Likewise, neither the FederalAcquisition Regulations nor the District of Columbiaprocurement regulations apply to the Authority’scontracting activities.

Chapter 1, Section B.3

The Authority’s contracting authority is, by statute,vested in the Executive Director, who may from time totime delegate specific contracting and procurementresponsibility and authority to various members of theAuthority’s staff. When authority is delegated to a

App. 146

staff member to serve as Contracting Officer for aparticular contract or category of procurement, thedelegation shall be in writing. All references herein tothe Executive Director shall be deemed to include anysuch delegations.

App. 147

APPENDIX D

Terms and ConditionsTreasury Services

Bank of America

App. 148

* * *

[p.7]

Introduction

Thank you for choosing the Bank of AmericaCorporation group of financial institutions for yourworldwide treasury management business needs.We appreciate the opportunity to serve you. If youhave any questions about our extensive array oftreasury services (including the locations whereeach service is available) or about this Booklet,please contact your Treasury Servicesrepresentative.

Capitalized terms used in this Booklet are definedin the Glossary. The terms “we”, “us” and “our” referto each of the Bank of America Corporationsubsidiary banks which provide you with aparticular Service under the terms of this Booklet.

This Booklet contains the terms and conditionsunder which we provide you with the worldwidetreasury services. It is used in conjunction with theAccount Agreement which covers account terms andconditions. Please read this Booklet carefully andkeep it for your records.

By signing and returning the “Authorization andAgreement” form in the front of this Booklet, youagree to the “General Provisions” section of thisBooklet, which contains the terms and conditionsapplicable to all Services. You also agree to thoseportions of the “Treasury Services” and “MicroTradeServices” sections of this Booklet which contain thespecific terms and conditions that relate to the

App. 149

Services that we provide to you. If you would like anadditional Service, it will be covered by the termsand conditions of this Booklet once we haveapproved your use of the Service. You may beginusing the Service when we have received allrequired and properly executed forms and you havesuccessfully completed any testing or trainingrequirements.

Whenever you use any of the Services covered bythis Booklet, you agree to be bound by these termsand conditions and to follow the procedures in theapplicable Materials. We may change the terms andconditions upon 30 days’ prior written notice to you.Your continued use of any Service, after theeffective date of the change, will indicate youragreement to the change.

* * *

[p.17]

Controlled Disbursement

Our Controlled Disbursement Services provideinformation to you each Business Day so that youcan fund the total amount of (1) controlleddisbursement checks presented that Business Day,and (2) where the option is available, controlleddisbursement ACH debits and any other electronicdebits to which we agree and which are posted thatBusiness Day.

AccountsWe make the Controlled Disbursement Servicesavailable through multiple Controlled

App. 150

Disbursement Points in different parts of theUnited States of America. These Points areidentified on the List of Banks and Services. Subjectto our approval in each case, you may use suchService through one or more of those Points. Foreach Controlled Disbursement Point you use, youmaintain one or more Deposit Accounts with us. Wemay restrict your use of any ControlledDisbursement Service with regard to checks issuedto individuals.

For certain Controlled Disbursement Points, asmore fully described in the applicable UserDocumentation, you may (1) draw checks bearingthose respective Points’ routing numbers directly ona Deposit Account, and (2) where the option isavailable, initiate or authorize third parties toinitiate ACH debits and, subject to specialagreement, other electronic debits to the DepositAccount. (For electronic debits to a Deposit Account,you must use the appropriate funds transfer Serviceapproved by us.)

For a certain other Controlled Disbursement Point,we authorize you to draw checks on accounts wemaintain at such Point; then we debit your DepositAccount(s) in the amounts(s) of the checks whichare paid. With these Services, you have no accountor contractual relationship with such ControlledDisbursement Point. You will not access ouraccounts maintained at such Point in any othermanner, including, but not limited to, automaticdebit arrangements cleared through an automatedclearing house network or through wire transfers.

App. 151

On each Business Day, we will inform you by thetime specified in the applicable User Documentationof the total amount of debits presented for paymentthat day at or through a Controlled DisbursementPoint and any other amounts required to bedeposited in the corresponding Deposit Account(s)to cover such debits. On each such Business Day,prior to the time stated in the applicable UserDocumentation, you must ensure that sufficientCollected and Available Funds are on deposit in theDeposit Account(s) to cover such amounts. If weattempt to post a debit to a Deposit Account for theamount due and determine there are insufficientfunds in the Deposit Account, we may dishonor orinstruct the pertinent Controlled DisbursementPoint to dishonor some or all of the checks thenpending payment and/or, as appropriate, return orreject any electronic debit pending settlement. Wemay, however, in our sole discretion, allow anoverdraft so some or all of such checks or electronicdebits will be paid or settled. If we do so, we are notobligated to allow any such overdraft in the future.

If, for any reason, we fail to provide you with timelynotice of the required funding amount for a DepositAccount, and if you fund such Deposit Accountaccording to the procedures (including fundingamount and time) described in the applicable UserDocumentation, we will post to the Deposit Account,or instruct the Controlled Disbursement Point topost to our account, all checks presented forpayment, and electronic debits received forsettlement, that day. If the required fundingamount nonetheless exceeds the amount funded byyou and you have insufficient funds in the Deposit

App. 152

Account to cover the required amount, we willoverdraw the Deposit Account and advance funds tocover the excess.

[p.18]

If we advance our own funds, you will repay us bythe cutoff time specified in the applicable UserDocumentation on the next Business Day alongwith interest on such funds as specified in ourschedule of charges for business account services oras otherwise agreed. If you do not, we may dishonor,or instruct the Controlled Disbursement Point todishonor, some or all of the checks then pendingfinal payment and/or, as appropriate, return orreject any electronic debit pending settlement evenif the Deposit Account has sufficient Collected andAvailable Funds to cover such debits.

We may require you to maintain a specifiedminimum amount in any Deposit Account for whichwe permit you to use automated clearing housetransfers to fund that Account.

If you use facsimile signatures on checks drawn onan account at a Controlled Disbursement Point,your use of such signatures is subject to the“Facsimile Signatures” section of this Booklet.

Stop PaymentsYou may request stop payments on checks drawnunder a Controlled Disbursement Service byfollowing the procedures specified in the applicableUser Documentation or applicable AccountAgreement. Also, you may use an Online StopPayment Service, which is subject to the “OnlineStop Payment” section of this Booklet. If you use

App. 153

telephone, mail or facsimile transmission to requesta stop payment, you agree that your Stop PaymentRequest is subject to the terms described in theAccount Agreement for requesting stops bytelephone or mail.

If some, but not all, of the information in your StopPayment Request matches a check which has beenpresented for payment (for example, the MagneticInk Character Recognition (MICR) serial numbersmatch and the dollar amounts do not match), wemay contact you to request a decision on whether ornot to pay the check. If any such suspect check isnot to be paid, you must promptly instruct as not topay, or to direct a Controlled Disbursement Pointnot to pay, the suspect check. If you do not, thesuspect check may be paid.

Disbursement Image

Our Disbursement Image Services will makeavailable to you digital images of checks and draftspaid against specified accounts. Such images maybe made available to you by online transmission orby CD-ROMs containing images you may accessusing image CD-ROM Software.

Check and draft images will be made available toyou at such times as you request and to which weagree. If an image of a check or draft is missing oris illegible, we will provide you with a microfilmcopy upon your request. Your request must includethe account number, the check serial number, theexact amount (dollars and cents) of the paymentand the date the payment was made. We may

App. 154

assess a fee for copies provided to you. We will notbe liable for failure to provide copies by a given timeor for failure to provide copies we are notreasonably able to provide.

Notwithstanding the “Limitation of Liabilities”section of this Booklet, we will not be liable fordamages arising under any Disbursement ImageService in excess of the amount of the check, draftor miscellaneous debit giving rise to your damageclaim. Any such claim must include the accountnumber, the check serial number, the exact amount(dollars and cents) of the payment, the date thepayment was made, the name of the payee, adetailed explanation of how the claimed lossoccurred and the name, address and phone numberof the payee to whom you cannot prove paymentwas made.

* * *

[p.37]

Facsimile Signatures

In some countries, businesses use a machine-imprinted and/or rubber-stamped facsimilesignature (each generally called a facsimilesignature) as a convenient method for signingchecks, documents and other items. If you choose touse a facsimile signature, you must provide us witha specimen facsimile signature of each personauthorized to do so.

You are responsible for any withdrawal from youraccount that bears or appears to us to bear your

App. 155

facsimile signature, regardless of by whom or bywhat means the signature was placed on the check.If you choose to use a facsimile signature, you areresponsible even if you have not presented us witha specimen facsimile signature, or if the size, coloror style of the check, or the size, color or style of thefacsimile signature is different from that of thecheck or facsimile signature you use. We may paythe withdrawal and debit your account for it.

You agree to compensate us for all losses, claims,damages or expenses, including Legal Expenses,that result from our payment of a withdrawalbearing a facsimile that resembles your facsimilesignature.

You are responsible for taking security measuresand implementing procedures to prevent theforgery, theft or fraudulent or unauthorized use ofyour facsimile signature.

General Matters

AgreementThis Booklet constitutes and represents the entireagreement between you and us regarding theServices we provide you anywhere in the world andsupersedes and extinguishes all prior agreements,understandings, representations, warranties andarrangements of any nature (including requests forproposals and other sales material), whether oral orwritten, between you and us relating to any suchService (including any International TreasuryServices Terms and Conditions booklet, butexcluding the current Account Agreement). This

App. 156

Booklet will be controlling in the event of anyconflict between it and any relevant UserDocumentation, any other document or written ororal statement (including but not limited to anyAccount Agreement, except as applicable lawrequires otherwise). Current User Documentationis available upon request.

This Booklet is binding upon each of your and ourrespective successors and permitted assigns. Youmay with our prior written consent, assign any ofyour rights or duties described in this Booklet. ThisBooklet is not for the benefit of any other person,and on other person has any right under thisBooklet against you or us, and nothing contained inthis Booklet creates any agency, fiduciary, jointventure or partnership relationship between youand us.

NOTICE OF FINAL AGREEMENT. THISWRITTEN AGREEMENT REPRESENTS THEFINAL AGREEMENT BETWEEN THEP A R T I E S A N D M A Y N O T B ECONTRADICTED BY EVIDENCE OF PRIOR,CONTEMPORANEOUS OR SUBSEQUENTORAL AGREEMENTS OF THE PARTIES.THERE ARE NO UNWRITTEN ORALAGREEMENTS BETWEEN THE PARTIES.

General ObligationsWe are responsible only for performing the Servicesexpressly provided for in this Booklet. We maycontract with an outside vendor in providing any ofthese Services.

App. 157

With respect to any Service, we will provide youwith assistance by telephone at the numbers andduring the hours specified by us in writing fromtime to time.

* * *

[p.41]

Representations and Warranties

On and as of each day we provide any Service toyou, you represent and warrant to us that:

P Your Agreement to each provision contained inthis Booklet is a duly authorized, legal, valid,binding and enforceable obligation;

P The debiting of any account as provided in thisBooklet is not inconsistent with any restrictionon the use of that account;

P All approvals and authorizations required topermit the execution and delivery of theAgreement and Authorization form and anyother necessary documentation, and theperformance and consummation by you of thetransactions contemplated under each Service,have been obtained, including but not limited todue authorization from each applicable thirdparty to allow you to transfer funds and accessinformation from such party’s account; and

P Your performance of your obligations will notviolate any law, regulation, judgment, decree ororder applicable to you.

App. 158

Resolution of Disputes

We try to resolve our clients’ Service problems ordisputes as quickly as possible. In most cases, wecan resolve a problem by telephone.

Any dispute or controversy concerning your use ofServices described in this Booklet will be decided byarbitration conducted in the United States ofAmerica (except as you and we expressly agreeotherwise) in accordance with the United StatesArbitration Act (Title 9, U.S. Code) under theCommercial Arbitration Rules of the AmericanArbitration Association. Under these procedures,the dispute is submitted to a neutral person fordetermination in place of a trial before a judge orjury. Judgment upon the award made by thearbitrator may be entered in my court havingjurisdiction.

Without regard to the foregoing, any dispute orcontroversy that arises from and Electronic FundsTransfer Service will be decided by a judge withouta jury in a United States of America federal or statecourt (except as you and we expressly agreeotherwise in writing). This means that in theseinstances you waive any right to a trial by jury inany action or proceeding and agree that such actionor proceeding will be tried before a judge without ajury.

Either you or we may exercise self-help remedies orobtain provisional or ancillary remedies from acourt. You or we may exercise or obtain theseremedies at any time, even while the arbitration or

App. 159

trial by judge is pending. By exercising or obtainingany such remedies, neither you nor we waive theright to request that a dispute or controversy bedecided by arbitration or trial by a judge.

* * *

[p.46]

Termination

Either you or we may terminate any or all Servicesupon 30 calendar days’ prior written notice to theother party. Notwithstanding the foregoingsentence, we may terminate any or all Serviceseffective immediately, and we will send you noticeof the termination, if any of the following occurs:

P You breach any of the terms and conditions inthis Booklet or any other agreement with us;

P You terminate, liquidate or dissolve yourbusiness or dispose of a substantial portion ofyour assets;

P You fail generally to pay your debts as theybecome due;

P You, voluntarily or involuntarily, become thesubject of any bankruptcy, insolvency,reorganization or other similar proceeding;

P You initiate any composition with your creditors;or

P Any guaranty of your obligations to usterminates, is revoked or its validity is contestedby the guarantor, or any of the events set forth

App. 160

in the above five bullet points attributable to youoccur to the guarantor.

If a Service you are using is terminated for anyreason, you will do the following:

P Immediately stop using any Materials relatingto the terminated Service;

P Erase or delete any Software we have providedrelating to the terminated Service to the extentit is stored in your computers; and

P At our option, either return to us or destroy allMaterials relating to the terminated Service andcertify to us that you have done so.

These obligations will continue after a Service youare using has been terminated.

Termination of a Service you use does not affectyour payment obligation for services we provide toyou before the Service is terminated. Also,termination of any Service you use does not releaseyou or us from any of our respective obligationswhich arose or became effective before suchtermination.

App. 161

APPENDIX E

Certified Copy of Corporate Resolutions, executed January 6, 2000

[Fold-Out Exhibit, see next 2 pages]

App. 162

APPENDIX F

[p.1]

Authorization and Agreement for TreasuryServices

Each of the undersigned as an officer, owner, principalor other authorized individual of the organizationspecified below (the “Client”). The Client has receivedBank of America’s Treasury Services Terms andConditions Booklet (the “Booklet”) and agrees to adhereto the Booklet, any applicable User Documentation,set-up forms and related documents and otherdisclosures provided to the Client with regard to theprovision of one or more Services from one or more ofBank of America Corporation’s subsidiary banks.

The subsidiary banks and Services covered by thisBooklet are listed on the accompanying List of Banksand Services, which we may change from time to time.Each banking institution listed on the accompanyingList of Banks and Services will be a “Bank” forpurposes of the Booklet once such banking institutionbegins to provide any Service to the Client. The Bookletconstitutes a separate agreement between the Clientand each Bank, now or in the future, when the Bankprovides any service. Capitalized terms used in thisAuthorization and Agreement form, not otherwisedefined, have the meanings given to them in theBooklet.

After signing below, the Client may from time to timerequest the Bank to provide any of the Services

App. 163

described in the Booklet. The Client may begin to useany such Service, subject to the Bank’s approval, oncethe Bank has received from the Client all required andproperly executed forms and the Client has successfullycompleted any testing or training requirements. TheBooklet supersedes other agreements between theClient and the Bank, as described under the “GeneralMatters” heading in the Booklet, with regard to theprovision of Services.

Each of the undersigned warrants that the Client hastaken all action required by its organizational orconstituent documents to authorize the undersigned toexecute and deliver on behalf of the Client thus“Authorization and Agreement” form and any otherdocuments the Bank may require with respect to aService. The undersigned as authorized to enter into alltransactions contemplated by the provision of Servicesto the Client. These may include, but are not limited to,giving the Bank instructions with regard to ElectronicFunds Transfer Services and designating employees oragents to act in the name and on behalf of the Client.

For Clients that are U.S. legal entities, guidelinesfor completion:

P If Client is a corporation, then an authorized officerother than the officer who signs the Authorizationand Agreement Certification must sign this form,

P If Client is a partnership, limited liability company,limited liability partnership or sole proprietorship,then all general partners, all members or theproprietor must sign this form unless Client’sorganizational or constituent documents specifyotherwise;

App. 164

P If Client is a governmental entity, the Treasurermust sign this form, unless Client’s charterspecifies otherwise.

Client must complete the following “Authorization andAgreement Certification.”

Dated: September 25, 2000

District of Columbia Government (CLIENT’S LEGAL NAME)

/s/John Robinson [Signature]

John Robinson [Print Name]

Acting Deputy CFO & Treasurer [Print Title]

/s/Alcindor Rosier [Signature]

Alcindor Rosier [Print Name]

Interim Associate Treasurer & Banking Manager [Print Title]

The following addresses may be used for giving noticesin connection with this Booklet except as you or weprovide the other different addresses to be used inconjunction with your accounts or particular Services.

App. 165

Address for Client Notices

Kim L. Bumgardner

441 4th Street, NW, 360 N

Washington, DC 20001

____________________________________

Telephone (202) 727-6055 or 727-0869

Fax (202) 727-3947 or 727-6049

Address(es) for Bank NoticesBank of America CorporationDocumentation Management (CA4-706-04-07)PO Box 27128Concord CA 94527-9904Fax 925 675 7131

and, if filled in, the following____________________________________________________________________________________________________________

Telephone (__) _____________

Fax (__) ___________________

[p.2]

Authorization and Agreement Certification

The undersigned certifies that the signature appearingon the previous page for the Client is the true signature

App. 166

of a person authorized to execute the form on behalf ofClient, and further certifies that the undersigned hasfull authority to execute this Certification. The Bank isentitled to rely upon this certification until writtennotice of its revocation is delivered to the Bank.

Guidelines for completion:

P If Client is a corporation, the chairman, president,chief executive officer, chief financial officer,treasurer, corporate secretary or an assistantcorporate secretary who did not sign theAuthorization and Agreement for Treasury Servicesmust sign this Certification,

P If Client is a partnership, limited liability companyor limited liability partnership, one of the generalpartners or members must sign this Certification,

P If Client is a governmental entity, the entity’scounsel must sign this Certification.

Sole proprietors do not need to complete thisCertification.

Note: If Client is not a U.S. legal entity, it is notrequired to complete this Certification.

Dated September 25, 2000


/s/Lasana K. Mack [Signature]

App. 167

Lasana Mack [Print Name]

Associate Treasurer [Print Title]

[p.3]

Treasury Services Delegation of Authority Form

This form is optional and is to be used when you wishto delegate authority to sign various subrogation formsto someone other than the person who signed the“Authorization and Agreement” form in the front of thisBooklet.

By signing below, you authorize the incumbent of thespecified position listed in Section A or each personlisted in section B below, acting alone, to executedocuments that we may request, and any amendmentsor renewals thereof, pertaining to the use of Services,including, but not limited to, designating one or morepersons (which may include himself or herself)authorized to initiate, amend, cancel, confirm or verifythe authenticity of instructions to us for Services,whether given orally, electronically or by facsimileinstructions, and to revoke any authorization grantedto any such person, as he or she deems appropriate.The signer of this form has the same authoritydescribed above for each Service with us, unlessotherwise specified. We are entitled to rely upon thedelegation until written notice of the revocation isreceived by us.

App. 168


Fill out either section A or section B, or both,depending on your needs

P To delegate authority to any person holding aspecific title, fill out section A.

P To delegate authority to specific individuals bynames, fill out section B.

For each name or title, indicate “All” in the “Service”column if the person or title has authority to signdocuments for all Services which you receive from us.Otherwise, indicate specific Services for which theperson or title has authority. For each name or title,indicate the entity or entities for which the person ortitle has authority to sign documents.

Client Authorization Instructions:

The same person who signed the “Authorization andAgreement for Treasury Services” form must sign this“Treasury Services Delegation of Authority” form.

A. TO DELEGATE AUTHORITY TO ANY PERSONHOLDING SPECIFIC POSITIONS

Title Service Entity

Deputy ChiefFinancial Officer &Treasurer

All District Government

Associate Treasurer All District Government

Banking RelationsMnger

All District Government

App. 169

B. TO DELEGATE AUTHORITY TO SPECIFICINDIVIDUALS

Name Service Entity Specimen Signature

CLIENT AUTHORIZATION

Dated September 25, 2000


/s/John Robinson [Signature]

John Robinson [Print Name]

Acting Deputy Chief Financial Officer & Treasurer[Print Title]

App. 170

APPENDIX G

Bank of America

Authorization and Agreement for Treasury Services

I am an authorized representative of the organizationspecified below (the “Client”). The Client has receivedBank of America’s Treasury Services Terms andConditions Booklet (the “Booklet”) and agrees to adhereto the Booklet and any applicable User Documentationfrom Bank of America (“Bank”). The Services coveredby the Booklet and the banks providing Services arelisted on the accompanying List of Banks and Services,which we may change from time to time. Capitalizedterms used in this Authorization and Agreement form,not otherwise defined, have the meanings given tothem in the Booklet.

After I sign below on behalf of the Client, the Clientmay from time to time request the Bank to provide anyof the Services described in the Booklet. The Clientmay begin to use any such Service once Bank hasapproved such use and has received all required andproperly executed forms and the Client has successfullycompleted any testing or training requirements. TheBooklet supersedes other agreements between theClient and the Bank, as described under the GeneralMatters heading in the Booklet, with regard to theprovision of Services.

I warrant that the Client has taken all action requiredby its organizational or constituent documents to

App. 171

authorize me to execute and deliver on behalf of theClient this Authorization and Agreement form and anyother documents the Bank may require with respect toa Service. I am authorized to enter into all transactionscontemplated by the provision of Services to the Client.These may include, but are not limited to, giving theBank instructions with regard to Electronic FundsTransfer Services and designating employees or agentsto act in the name and on behalf of the Client.

Guidelines for completion:If Client is a: Who must sign:corporation . . . . . . . . . . any authorized officerlimited liabilitycompany . . . . . . . . . . . .

all members, or anyauthorized officer*

partnership (general or limited) . . . . . . . . . . all general partners*

limited liabilitypartnership . . . . . . . . .

the managingpartner*

sole proprietorship . . . the sole proprietorgovernmental entity . . the Treasurer*

*Includes any individual authorized under Client’scharter or organizational or constituent documents.The legal name of any member, managing member,manager or general partner who is signing and who isnot an individual must appear in the signature block.Client’s charter or organization or constituentdocuments may allow others to sign instead. Note thatin most cases the Client must also complete theCertification form which follows.

App. 172

March 6, 2006 Dated

Government of the District of Columbia (ORGANIZATION’S / CLIENT’S LEGAL NAME)

/s/Lasana K. Mack [Signature of Authorized Representative]

Lasana K. Mack [Print Name of Authorized Representative)]

Deputy Chief Financial Officer and Treasurer [Print Title of Authorized Representative (include thelegal name of any member, managing member, mangeror general partner who is signing and who is not anindividual)]


Address for Client Notices:

Office of Finance and Treasury 1275 K Street NW, Suite 500 Washington, DC 20005 ___________________________________Telephone (202) 727-6055 Fax (202) 727-6049

Address(es) for Bank Notices:Bank of America, N.A.Documentation Management (CA4-706-04-07)P.O. Box 27128

App. 173

Concord, CA 94527-9904Fax No.: (925) 675-7131

and, if filled in, the following____________________________________________________________________________________________________________Telephone (__)_____________Fax (__)___________________

App. 174

Bank of America

Authorization and Agreement for Certification

I certify that each signature appearing on the previouspage for Client is the true signature of a personauthorized to execute the form on behalf of Client, andI further certify that I have full authority to executethis certification. The Bank is entitled to rely upon thiscertification until written notice of the revocation isdelivered to the Bank.

Guidelines for completion: This Certificationshould not be signed by the individual whosigned the Authorization and Agreement

If Client is a: Who must sign:corporation . . . . . . . . . . any authorized officerlimited liabilitycompany . . . . . . . . . . . .

any member or anyauthorized officer

limited liabilitypartnership . . . . . . . . . any general partners

Partnership (general or limited) . . . . . . . . . . any general partners

sole proprietorship . . . no signature requiredgovernmental entity . . this entity’s counsel, or

any other individual aspermitted by theentity’s organizationaldocuments

App. 175

The legal name of any member, managing member,manager or general partner who is signing and who isnot an individual must appear in the signature block.

Note: If Client is not a U. S. based entity, it is notrequired to complete this certification, but mustprovide authorizing certificates or mandates.

March 6, 2006 Dated


/s/Ulysses Glen, Jr. [Signature of Certifying Representative]

Ulysses Glen, Jr. [Print Name of Certifying Representative]

Chief of Staff [Print Title of Certifying Representative (includingthe legal name of any member, managing member,manger or general partner who is signing and whois not an individual)]

App. 176

Bank of America

Treasury ServicesDelegation of Authority Form

This form is optional and is to be used when you wishto delegate authority to sign various authorizationforms to someone other than the person who signed theAuthorization and Agreement form in the front of thisBooklet.

By signing below, you authorize the incumbent of thespecified position listed in Section A or such personlisted in section B below, acting alone, to executedocuments that we may request, and any amendmentsor renewals thereof, pertaining to the use of Services,including, but not limited to designating one or morepersons (which may include himself or herself)authorized to initiate, amend, cancel, confirm or verifythe authenticity of instructions to us for Services,whether given orally, electronically or by facsimileinstructions, and to revoke any authorization grantedto any such person, as he or she deems appropriate.The signer of this form has the same authoritydescribed above for each Service with us, unlessotherwise specified. We are entitled to rely upon thisdelegation until written notice of the revocation isreceived by us.

App. 177

Guidelines for Completion: Fill out either sectionA or section B, or both, depending on your needs.

P To delegate authority to any person holding aspecific title, fill out section A.

P To delegate authority to specific individuals byname, fill out section B.


A. TO DELEGATE AUTHORITY TO ANY PERSONHOLDING SPECIFIC POSITION

TITLE SERVICE ENTITY

Deputy CFO andTreasurer

All

Associate Treasurer All

***Not Applicable***

App. 178


NAME SERVICE ENTITY SPECIMENSIGNATURE

***No DateWithin ThisSection B***

CLIENT AUTHORIZATIONClient Authorization Instructions: The same personwho signed the Authorization and Agreement forTreasury Services form must sign this TreasuryServices Delegation of Authority form.

March 6, 2006 Dated


/s/Lasana K. Mack [Signature of Authorized Representative]

Lasana K. Mack [Print Name of Authorized Representative]

Deputy Chief Financial Officer and Treasurer [Print Title of Authorized Representative (includingthe legal name of any member, managing member,manger or general partner who is signing and whois not an individual)]

App. 179

APPENDIX H

Treasury ServicesTerms and Conditions

Bank of America Higher Standards

App. 180

[p.1]

AUTHORIZATION AND AGREEMENT FORTREASURY SERVICES

I am an authorized representative of the organizationspecified below (the “Client”). The Client has receivedBank of America’s Treasury Services Terms andConditions Booklet (the “Booklet”) in the form and withthe content posted on the website of Bank of Americaand agrees to adhere to the Booklet and any applicableUser Documentation from Bank of America (“Bank”).The Services covered by the Booklet and the banksproviding Services are listed on the accompanying Listof Banks and Services, which we may change from timeto time. Capitalized terms used in this Authorizationand Agreement form, not otherwise defined, have themeanings given to them in the Booklet.

After I sign below on behalf of the Client, the Clientmay from time to time request the Bank to provide anyof the Services described in the Booklet. The Clientmay begin to use any such Service once Bank hasapproved such use and has received all required andproperly executed forms and the Client has successfully completed any testing or training requirements. TheBooklet supersedes other agreements between theClient and the Bank, as described under the GeneralMatters heading in the Booklet, with regard to theprovision of Services.

I warrant that the Client has taken all action requiredby its organizational or constituent documents toauthorize me to execute and deliver on behalf of theClient this Authorization and Agreement form and anyother documents the Bank may require with respect to

App. 181

a Service. I am authorized to enter into all transactionscontemplated by the provision of Services to the Client.These may include, but are not limited to, giving theBank instructions with regard to Electronic FundsTransfer Services and designating employees or agentsto act in the name and on behalf of the Client.




partnership (general or limited) . . . . . . . . . . all general partner*

limited liabilitypartnership . . . . . . . . .



* Includes any individual authorized under Client’scharter or organizational or constituent documents.The legal name of any member, managing member,manager or general partner who is signing and who isnot an individual must appear in the signature block.Note that in most cases the Client must also completethe Certification form which follows.

App. 182

(ORGANIZATION’S/CLIENT’S LEGAL NAME)

______________________________________________Dated

[Signature of Authorized Representative]

[Print Name of Authorized Representative]

[Print Title of Authorized Representative (include thelegal name of any member, managing member, mangeror general partner who is signing and who is not anindividual)]



____________________________________________________________________________________________________________________________________________

Telephone: ( ) _____________________ Fax: ( ) ___________________________

[Signature of Authorized Representative, if two arerequired by Client]

App. 183


__________________________________________________[Print Title of Authorized Representative (include thelegal name of any member, managing member, mangeror general partner who is signing and who is not anindividual)]

Address(es) for Bank Notices:Bank of America, N.A.Documentation Management (CA4-706-04-07)P.O. Box 27128Concord, CA 94527-9904Fax No.: (925) 675-7131and, if filled in, the following____________________________________________________________________________________________________________Telephone: ( )_____________Fax: ( )___________________

[p.2]

A U T H O R I Z A T I O N A N D A G R E E M E N TCERTIFICATION

I certify that each signature appearing on the previouspage for Client is the true signature of a personauthorized to execute the form on behalf of Client, andI further certify that I have full authority to executethis certification. The Bank is entitled to rely upon thiscertification until written notice of its revocation isdelivered to the Bank.

App. 184

Guidelines for completion: This Certification should notbe signed by the individual who signed theAuthorization and Agreement.


any member orauthorized officer

limited liabilitypartnership . . . . . . . . . any partner

partnership (general or limited) . . . . . . . . . . any general partner

sole proprietorship . . . no signature required

governmental entity the entity’scounsel, or any other individual aspermitted by the entity’sorganizational documents

The legal name of any member, managing member,manager or general partner who is signing and who isnot an individual must appear in the signature block.

Note: If Client is not a U.S. based entity, it is notrequired to complete this certification, but mustprovide authorizing certificates or mandates.

________________________Dated


App. 185

[Signature of Certifying Representative]

[Print Name of Certifying Representative)]

[Print Title of Certifying Representative (include thelegal name of any member, managing member, mangeror general partner who is signing and who is not anindividual)]

[p.3]

TREASURY SERVICES DELEGATION OFAUTHORITY FORM


By signing below, you authorize the incumbent of thespecified position listed in Section A or each personlisted in section B below, acting alone, to executedocuments that we may request, and any amendmentsor renewals thereof, pertaining to the use of Services,including but not limited to designating one or morepersons (which may include himself of herself)authorized to initiate, amend, cancel, confirm or verifythe authenticity of instructions to us for Services,whether given orally, electronically or by facsimileinstructions, and to revoke any authorization grantedto any such person, as he or she deems appropriate.The signer of this form has the same authoritydescribed above for each Service with us, unless

App. 186

otherwise specified. We are entitled to rely upon thisdelegation until written notice of its revocation isreceived by us.

Guidelines for Completion: Fill out either section A orsection B, or both, depending on your needs.

• To delegate authority to any person holding aspecific title, fill out section A.

• To delegate authority to specific individuals byname, fill out section B.



Title Service Entity

App. 187


Name Service Entity Specimen Signature

CLIENT AUTHORIZATION

Client Authorization Instructions: The same personwho signed the Authorization and Agreement forTreasury Services form must sign this TreasuryServices Delegation of Authority form.

Dated


[Signature of Authorized Representative]


[Print Title (include the legal name of any member,managing member, manger or general partner whois signing and who is not an individual)]

* * *

App. 188

[p.6]

INTRODUCTION

Thank you for choosing the Bank of AmericaCorporation group of financial institutions for yourworldwide treasury management business needs.We appreciate the opportunity to serve you. If youhave any questions about our extensive array oftreasury services (including the locations whereeach service is available) or about this Booklet,please contact your treasury representatives.

Capitalized terms used in this Booklet are definedin the Glossary. The terms “we”, “us” and “our” referto each of the Bank of America Corporationsubsidiary banks which provide you a particularService under the terms of this Booklet. The terms“you” and “your” refer to each Client identified onthe Authorization and Agreement for TreasuryServices.

This Booklet contains the terms and conditionsunder which we provide you worldwide treasuryservices. It is used in conjunction with the AccountAgreement which covers account terms andconditions. Please read this Booklet carefully andkeep it for your records.

By signing and returning the Authorization andAgreement form in the front of this Booklet, youagree to the General Provisions section of thisBooklet (which contains the terms and conditionsapplicable to all Services), except that you agree tothe Software License Section of the GeneralProvisions only to the extent we provide youSoftware in connection with one or more Services.

App. 189

You also agree to those portions of the TreasuryServices and Electronic Trade Services sections ofthis Booklet which contain the specific terms andconditions that relate to the Services that weprovide to you. If you would like an additionalService, it will be covered by the terms andconditions of this Booklet once we have approvedyour use of the Service. You may begin using theService when we have received all required andproperly executed forms and you have successfullycompleted any testing or training requirements.

Whenever you use any of the Services covered bythis Booklet, you agree to be bound by these termsand conditions, as amended from time to time, andto follow the procedures in the applicable Materials.

* * *

[p.24]

You may instruct us to make either date-related(where available) or balance-related (whereavailable) transfers as described below. Once youinstruct us to transfer funds between accounts,transfers begin on a mutually agreeable date or, foraccounts domiciled in the United States of America,either immediately or on the date you specify.

With a date-related transfer, funds can betransferred in either direction between certaintypes of accounts on the date and in the amount youspecify. Both interstate and intrastate fundstransfers are permitted as long as you meet therequirements for the account type(s), transfer dateand account location(s). If the transfer date you

App. 190

specify is a non-Business Day, we make the transferon the next Business Day.

With a balance-related transfer, you may havefunds transferred to an account when the balancefalls below a certain amount, or from an account,when the balance rises above a certain amount, orboth. We transfer the amount required to meet theaccount balance you specify.

You may elect to have funds transferred to or fromaccounts of another company/organization using aService. You agree that for each such account, thecompany/organization will provide us with itswritten authorization, in a form acceptable to us, forsuch transfers. However, you do not need to provideus such written authorization if (i) the othercompany’s accounts are domiciled in the UnitedStates of America and (ii) you represent andwarrant that such other company is a U.S.Subsidiary and that it has authorized us to transferfunds between its accounts and your accounts.

CONTROLLED DISBURSEMENT

Our Controlled Disbursement Services provideinformation to you each Business Day so that youcan fund the total amount of i) controlleddisbursement checks presented that Business Dayand (ii) where the option is available, controlleddisbursement ACH debits and any other electronicdebits to which we agree and which are posted thatBusiness Day.

App. 191

ACCOUNTSWe make the Controlled Disbursement Servicesavailable through multiple ControlledDisbursement Points in different parts of theUnited States of America. These Points areidentified on the List of Banks and Services. Subjectto our approval in each case, you may use suchService through one or more of those Points. Foreach Controlled Disbursement Point you use, youmaintain one or more Deposit Accounts with us.

For certain Controlled Disbursement Points, asmore fully described in the applicable UserDocumentation, you may (i) draw checks bearingthose respective Points’ routing numbers directly ona Deposit Account and (ii) where the option isavailable, initiate or authorize third parties toinitiate ACH debits and, subject to specialagreement, other electronic debits to the DepositAccount. (For electronic debits to a Deposit Account,you must use the appropriate funds transfer Serviceapproved by us.)

For a certain other Controlled Disbursement Point,we authorize you to draw checks on accounts wemaintain at such Point, then we debit your DepositAccount(s) in the amount(s) of the checks which arepaid. With these Services, you have no account orcontractual relationship with such ControlledDisbursement Point. You will not access ouraccounts maintained at such Point in any othermanner, including but not limited to automaticdebit arrangements cleared through an automatedclearing house network or through wire transfers.

App. 192

[p.25]

On each Business Day, we will inform you by thetime specified in the applicable User Documentationof the total amount of debits presented for paymentthat day at or through a Controlled DisbursementPoint and any other amounts required to bedeposited in the corresponding Deposit Account(s)to cover such debits. On each such Business Day,prior to the time stated in the applicable UserDocumentation, you must ensure that sufficientCollected and Available Funds are on deposit in theDeposit Account(s) to cover such amounts. If weattempt to post a debit to a Deposit Account for theamount due and determine there are insufficientfunds in the Deposit Account, we may dishonor orinstruct the pertinent Controlled DisbursementPoint to dishonor some or all of the checks thenpending payment and/or, as appropriate, return orreject any electronic debit pending settlement. Wemay, however, in our sole discretion, allow anoverdraft so some or all of such checks or electronicdebits will be paid or settled. If we do so, we are notobligated to allow any such overdraft in the future.

If, for any reason, we fail to provide you timelynotice of the required funding amount for a DepositAccount, and if you fund such Deposit Accountaccording to the procedures (including fundingamount and time) described in the applicable UserDocumentation, we will post to the Deposit Account,or instruct the Controlled Disbursement Point topost to your account, all checks presented forpayment, and electronic debits received forsettlement, that day. If the required funding

App. 193

amount nonetheless exceeds the amount funded byyou and you have insufficient funds in the DepositAccount to cover the required amount, we willoverdraw the Deposit Account and advance funds tocover the excess.

If we advance our own funds, repayment isimmediately due and payable, and you will repay uson or before the next Business Day along withinterest on such funds as specified in our scheduleof charges for business account services or asotherwise agreed. If you do not, we may dishonor, orinstruct the Controlled Disbursement Point todishonor, some or all of the checks then pendingfinal payment and/or, as appropriate, return orreject any electronic debit pending settlement evenif the Deposit Account has sufficient Collected andAvailable Funds to cover such debits.

We may require you to maintain a specifiedminimum amount in any Deposit Account for whichwe permit you to use automated clearing housetransfers to fund that Account.

If you use facsimile signatures on checks drawn onan account at a Controlled Disbursement Point,your use of such signatures is subject to theFacsimile Signatures section of this Booklet.

STOP PAYMENTSYou may request stop payments on checks drawnunder a Controlled Disbursement Service byfollowing the procedures specified in the applicableUser Documentation or applicable AccountAgreement. Also, you may use an Online StopPayment Service, which is subject to the Online

App. 194

Stop Payment section of this Booklet. If you usetelephone, mail or facsimile transmission to requesta stop payment, you agree that your stop paymentrequest is subject to the terms described in theAccount Agreement for requesting stops bytelephone or mail.

[p.26]

If some, but not all, of the information in your stoppayment request matches a check which has beenpresented for payment (for example, the MagneticInk Character Recognition (MICR) serial numbersmatch and the dollar amounts do not match), wemay contact you to request a decision on whether ornot to pay the check. If any such suspect check isnot to be paid, you must promptly instruct us not topay, or to direct a Controlled Disbursement Pointnot to pay, the suspect check. If you do not, thesuspect check may be paid.

DISBURSEMENT IMAGE

Our Disbursement Image Services will makeavailable to you digital images of checks and draftspaid against specified accounts. Such images maybe made available to you by online transmission orby CD-ROMs containing images you may accessusing image CD-ROM Software.

Check and draft images will be made available toyou at such times as you request and we agree. If animage of a check or draft is missing or is illegible,we will provide you a microfilm copy upon yourrequest. Your request must include the accountnumber, the check serial number, the exact amount

App. 195

(dollars and cents) of the payment and the date thepayment was made. We may assess a fee for copiesprovided to you. We will not be liable for failure toprovide copies by a given time or for failure toprovide copies we are not reasonably able toprovide.

Notwithstanding the Limitation of Liabilitiessection of this Booklet, we will not be liable fordamages arising under any Disbursement ImageService in excess of the amount of the check, draftor miscellaneous debit giving rise to your damageclaim. Any such claim must include the accountnumber, the check serial number, the exact amount(dollars and cents) of the payment, the date thepayment was made, the name of the payee, adetailed explanation of how the claimed lossoccurred and the name, address and phone numberof the payee to whom you cannot prove paymentwas made.

Notwithstanding the Termination section of thisBooklet, in the case of a Disbursement ImageService using CD-ROMs, termination of suchService upon 30 days notice may not be effectiveearlier than the first day of the statement periodimmediately following the statement period duringwhich such notice is given.

E L E C T R O N I C B I L L P A Y M E N TCONSOLIDATION

Our Electronic Bill Payment Consolidation Serviceconsolidates, reformats and delivers remittanceinformation and other data related to payments

App. 196

received from Bill Payment Service Providers forcredit to your account. Detailed informationregarding the Service is available in the applicableUser Documentation.

* * *

[p.56]

FACSIMILE SIGNATURES

In some countries, businesses use a variety oftechniques to produce a facsimile signaturemanually or by means of a device or machine (eachgenerally called a facsimile signature) as aconvenient method for signing checks, documentsand other items. If you choose to use a facsimilesignature, you must provide us with a specimen ofeach facsimile signature.

You are responsible for any withdrawal from yourdeposit account that bears or reasonably appears tous to bear your facsimile signature, regardless of bywhom or by what means the signature was placedon the check. If you choose to use a facsimilesignature, you are responsible even if you have notpresented us with a specimen facsimile signature,or if the size, color or style of the check, or the size,color or style of the facsimile signature is differentfrom that of the check or facsimile signature youuse. We may pay the withdrawal and debit youraccount for it.

You agree to compensate us for all losses, claims,damages or expenses, including Legal Expenses,that result from our payment of a withdrawal

App. 197

bearing a facsimile that reasonably resembles yourfacsimile signature.

You are responsible for taking security measuresand implementing procedures to prevent theforgery, theft or fraudulent or unauthorized use ofyour facsimile signature.

GENERAL MATTERS

AGREEMENT

Except with respect to a click-wrap online privacypolicy to which you agree when you use a Servicethrough Bank of America Direct®, this Bookletconstitutes and represents the entire agreementbetween you and us regarding the Services weprovide you anywhere in the world and supersedesand extinguishes all prior agreements,understandings, representations, warranties andarrangements of any nature (including requests forproposals and other sales material), whether oral orwritten, between you and us relating to any suchService (including any International TreasuryServices Terms and Conditions booklet, butexcluding the current Account Agreement). ThisBooklet will be controlling in the event of anyconflict between it and any relevant UserDocumentation, any other document or written ororal statement (including but not limited to anyAccount Agreement, except as applicable lawrequires otherwise), but excluding the click-wraponline privacy policy noted above. Current UserDocumentation is available upon request.

App. 198

This Booklet is binding upon each of your and ourrespective successors and permitted assigns. Youmay with our prior written consent, assign any ofyour rights or duties described in this Booklet. ThisBooklet is not for the benefit of any other person,and no other person has any right under thisBooklet against you or us, and nothing contained inthis Booklet creates any agency, fiduciary, jointventure or partnership relationship between youand us.

NOTICE OF FINAL AGREEMENT. THISWRITTEN AGREEMENT REPRESENTS THEFINAL AGREEMENT BETWEEN THE PARTIESAND MAY NOT BE CONTRADICTED BYEVIDENCE OF PRIOR, CONTEMPORANEOUSOR SUBSEQUENT ORAL AGREEMENTS OF THEPARTIES. THERE ARE NO UNWRITTEN ORALAGREEMENTS BETWEEN THE PARTIES.

* * *

[p.60]

We will, on a monthly basis, debit your account withus for payment of charges due, unless you arrangeanother payment procedure acceptable to us.

TAXESAll Service charges are exclusive of sales, value-added and use taxes, stamp and other duties andother governmental charges imposed on any Serviceor Materials and not based on our net income. Suchtaxes, duties and charges are payable by you.

App. 199

PROTECTION FROM THIRD PARTIES

You will indemnify us against and hold us harmlessfrom and defend us against any and all liabilities,claims, costs, expenses and damages of any nature(including Legal Expenses) arising out of or relatingto disputes or legal actions by parties other thanyou and us concerning any Service. The obligationscontained in the preceding sentence will continueafter a Service you are using is terminated. Thissection does not apply to any cost or damageattributable to our gross negligence or intentionalmisconduct.

REPRESENTATIONS AND WARRANTIES

On and as of each day we provide any Service toyou, you represent and warrant to us that:

• Your agreement to each provision contained inthis Booklet is a duly authorized, legal, valid,binding and enforceable obligation;

• The debiting of any account as provided in thisBooklet is not inconsistent with any restrictionon the use of that account;

• All approvals and authorizations required topermit the execution and delivery of theAgreement and Authorization form and anyother necessary documentation, and theperformance and consummation by you of thetransactions contemplated under each Service,have been obtained, including but not limited todue authorization from each applicable third

App. 200

party to allow you to transfer funds and accessinformation from such party’s account;

• Your performance of your obligations will notviolate any law, regulation, judgment, decree ororder applicable to you; and

• There is no lawsuit, tax claim or other disputepending or threatened against you which, if lost,would impair your financial condition or abilityto pay us under the terms of this Booklet.

RESOLUTION OF DISPUTES

We try to resolve our clients’ Service problems ordisputes as quickly as possible. In most cases, wecan resolve a problem by telephone.

[p.61]

Any dispute or controversy concerning your use ofServices described in this Booklet will be decided bybinding arbitration conducted in the United Statesof America (except as you and we expressly agreeotherwise) in accordance with the United StatesArbitration Act (Title 9, U.S. Code) under theCommercial Arbitration Rules of the AmericanArbitration Association. Under these procedures,the dispute is submitted to a neutral person fordetermination in place of a trial before a judge orjury. Judgment upon the award made by thearbitrator may be entered in any court havingjurisdiction.

Without regard to the foregoing, any dispute orcontroversy that arises from an Electronic Funds

App. 201

Transfer Service will be decided by a judge withouta jury in a United States of America federal or statecourt (except as you and we expressly agreeotherwise in writing). This means that in theseinstances you waive any right to a trial by jury inany action or proceeding and agree that such actionor proceeding will be tried before a judge without ajury.

Either you or we may exercise self-help remedies orobtain provisional or ancillary remedies from acourt. You or we may exercise or obtain theseremedies at any time, even while the arbitration ortrial by a judge is pending. By exercising orobtaining any such remedies, neither you nor wewaive the right to request that a dispute orcontroversy be decided by arbitration or trial by ajudge.

SOFTWARE LICENSE

This section applies to all Software we provide toyou after you return the Agreement andAuthorization form unless we provide you aseparate license agreement for specific Software(including a “click-wrap” Software license you mayobtain from us by downloading from our websiteand including, in the case of the Commercial andCorporate Card Services, the licenses for Visa,InfoSpan, MasterCard SmartData and any otherthird-party Software we provide you in connectionwith such Services). Notwithstanding anything tothe contrary in the “General Provisions” section ofthis Booklet, the software licenses granted to youunder this Software License section are governed by

App. 202

and interpreted according to the laws of the State ofCalifornia without reference to its principles ofconflicts of law.

LICENSEFor each Software application we provide to you forone or more Services, we grant you a non-exclusive,non-transferable license for the use of that Softwareand its related Materials. Each license is grantedsolely for use in object code form only in connectionwith one or more Services. You may use theSoftware only in accordance with the applicableUser Documentation.

The Software, its source code, the related Materialsand all copyright, patent, trademark, trade secretand other rights in them are and will remain theexclusive property of us or our licensors. You willsecure and protect the Software (including allcopies) in a manner consistent with themaintenance of our rights and those of ourlicensors. In order to protect those rights, you willreproduce and incorporate copyright notices and allother proprietary legends prescribed by us in anypermitted copies. You may not remove, obscure orotherwise tamper with or alter any such notices orlegends affixed to or otherwise contained in theSoftware or related Materials or copies. You willalso take appropriate action to instruct and obligateyour representatives who are permitted access tothe Software (including copies) to comply with yourobligations to protect the Software.

* * *

App. 203

[p.65]

You may not electronically distribute the Image CD-ROM Software to any workstation other than theone for which such Software is originally installedon your site.

Notwithstanding anything to the contrary in theTermination section of this Booklet, if aDisbursement Image Service under which weprovide you with CD-ROMs is terminated for areason other than your breach of this SoftwareLicense section, you may continue to use theSoftware for such Service after termination of suchService for six months, or for such longer period aswe approve, subject to the terms of this SoftwareLicense section or such other software licenseagreement as we, at our election, require you to signfor this purpose. At the end of such six-month orlonger period, the license for your use of theSoftware for such Disbursement Image Service willthen terminate automatically.

SUPPLEMENTAL IMAGE (POSITIVE PAY)SOFTWARE LICENSE PROVISIONSThis subsection supplements this Software Licensesection with respect to Software we provide you forthe Image Positive Pay Service and shall control inthe event of conflict between it and the balance ofthe Software License section.

You may not electronically distribute the CCR (CCompression Routines) Software for Windows 3.1provided to you in connection with the ImagePositive Pay Service to any workstation other than

App. 204

the one for which such Software is originallyinstalled on your site.

TERMINATION

Either you or we may terminate any or all Servicesupon 30 (60 in the case of Corporate Card Services)calendar days prior written notice to the otherparty. Notwithstanding the foregoing sentence, wemay terminate any or all Services effectiveimmediately, and we will send you notice of thetermination, if any of the following occurs:

• You breach any of the terms and conditions inthis Booklet or any other agreement with us;

• You terminate, liquidate or dissolve yourbusiness or dispose of a substantial portion ofyour assets;

• You fail generally to pay your debts as theybecome due;

• You, voluntarily or involuntarily, become thesubject of any bankruptcy, insolvency,reorganization or other similar proceeding;

• You initiate any composition with your creditors;

• You experience a material adverse change inyour financial condition or your ability toperform your obligations under the terms andconditions in this Booklet; or

• Any guaranty of your obligations to usterminates, is revoked or its validity is contestedby the guarantor, or any of the events set forth

App. 205

in the above five bullet points attributable to youoccur to the guarantor.

If a Service you are using is terminated for anyreason, you will do the following:

• Immediately stop using any Materials relatingto the terminated Service;

• Erase or delete any Software we have providedrelating to the terminated Service to the extentit is stored in your computers; and

• At our option, either return to us or destroy allMaterials relating to the terminated Service andcertify to us that you have done so.

[p.66]

These obligations will continue after a Service you areusing has been terminated.

Termination of a Service you use does not affect yourpayment obligations for services we provide to youbefore the Service is terminated, and any suchtermination is in addition to our other rights underapplicable law and under the terms of this Booklet.Also, termination of any Service you use does notrelease you or us from any of our respective obligationswhich arose or became effective before suchtermination. Upon termination, all amounts owed byyou and outstanding will become immediately due andpayable.

App. 206

APPENDIX I

DISTRICT OF COLUMBIAOFFICE OF THE CHIEF FINANCIAL OFFICER

CONTRACT

ISSUED BY: Office of the Chief Financial Officer –Office of Contracts and Procurement

ADDRESS: 941 North Capitol Street, N.E. 8th Floor,Washington, D.C. 20002

CONTRACT NO.: CFOPD-05-C-083SOLICITATION NO: CFOPD-05-R-019

PROGRAM OFFICE: OFFICE OF FINANCE ANDTREASURY

CAPTION: Controlled Disbursement AccountServices

TABLE OF CONTENTS

Article DESCRIP-TION

PAGE(S) DESCRIP-TION

PAGE(S)

I Scope ofWork

2

II ContractType/Price

2

III Pre-AwardApproval

2

App. 207

IV Incorpor-atedDocumentsby Order ofprecedence

2

V TotalAgreement

2

The undersigned offers and agrees that with respect toall terms and conditions as negotiated between theofferor and OCFO and contained herein and, in theprovisions of the solicitation, shall constitute theformal contract.

ACCOUNTING AND APPROPRIATION DATA:PURCHASE ORDER NUMBER: TBD

CONTRACTOR:(Contractor shall notcommence performanceuntil the District ofColumbia has signedthis document)

(Contractor’s Name)

Bank of America

BY /s/ Signature by AuthorizedRepresentative

ACCEPTANCE BYTHE OFFICE OF THECHIEF FINANCIALOFFICER:

/s/ Contracting Officer

11-13-05 Date

The informationcontained in the boxbelow is for the Office ofthe Chief Financial

App. 208

______________________ Senior Vice President____________________ Date

Mailing Address ofContractor10 Light Street MD4-302-16-07Baltimore, MD 21202

Telephone: Facsimile:410-605-5291

Officer use only and, inthe event of adiscrepancy betweenthis information and theterms of the contract,the contract terms shalltake precedence.

_____________________

PERIOD OFCONTRACT

RFrom: Date ofSignature byContracting officerTo: One (1) year + Four(4) OptionsCONTRA T AMOUNT:Redacted

Subject to the terms and conditions set forth herein,the Government of the District of Columbia, Office ofthe Chief Financial Officer, Office of Finance andTreasury, (hereinafter referred to as the District andBank of America (hereinafter referred to asContractor) hereby enter into a contract in accordancewith the following terms:

App. 209

Page 2 of 3 Pages

Contractor: Bank of AmericaContract No.: CFOPD-05-C-083Caption: Controlled Disbursement Account Services

Subject to the terms and conditions set forth herein,the Government of the District of Columbia, Office ofthe Chief Financial Officer, Office of Finance andTreasury, (hereinafter referred to as the District) andBank of America (hereinafter referred to as Contractor)hereby enter into a contract in accordance with thefollowing terms:

ARTICLE I – SCOPE OF WORK

The Office of the Chief Financial Officer requires theestablishment of a demand deposit account (DDA) toissue checks to government vendors and third parties. The financial institution providing these bankingservices must have the capacity to operate the account,provide a report of balances for the account to theOffice of Finance and Treasury’s Case ManagementUnit (CMU) by an automated balance reporting systemand, send information electronically. The intent of thiscontract is for a contractor to manage the disbursementaccount in accordance with the published Request forProposal.

ARTICLE II – CONTRACT TYPE/AMOUNT

Under this contract, costs incurred by the District ofColumbia that result from operating the account(debits/credits, account reports, etc.) shall be invoicedmonthly by the contractor upon completion ofperformance of service. The District will makepayments for financial services to the contractor on a

App. 210

quarterly basis in the form of check or electronic fundstransfer.

ARTICLE III – PERIOD OF PERFORMANCE

The contract period shall be one (1) year from date ofaward with the District’s option to renew the contractfor four (4) 1-year periods.

A. Option Period

1. The District may extend the term of thiscontract by exercising up to four (4) one-yearoption periods.

2. The total duration of this contract, including theexercise of any options under this clause, shallnot exceed five (5) years.

B. Option To Extend the Term of the Contract

1. The District may extend the term of thiscontract for a period of four (4), one-year optionperiods, or fractions thereof, by written notice tothe Contractor before the expiration of thecontract; provided that the District shall give theContractor a preliminary written notice of itsintent to extend at least thirty (30) days beforethe contract expires. The preliminary noticedoes not commit the District to an extension. The exercise of this option is subject to the

Page 3 of 3 Pages

availability of funds at the time of the exercise ofthis option. The Contractor may waive thethirty (30) days preliminary notice requirement

App. 211

by providing a written waiver to the ContractingOfficer prior to expiration of the contract.

2. If the District exercises this option, the extendedcontract shall be considered to include thisoption provision.

3. The price for the option period shall be asspecified in the contract.

ARTICLE IV – INCORPORATED DOCUMENTSBY ORDER OF PRECEDENCE

A. Articles I through V of this contract;B. Contractor’s Technical Proposal and Cost

Proposal C. Contractor’s Best and Final Offer dated April 25,

2005 D. Request for Proposal (RFP) Number

CFOPD-02-R-019 issued

ARTICLE V– TOTAL AGREEMENT

This contract, including specifically incorporateddocuments, constitutes the total and entire agreementbetween the parties. All previous discussions, writings,and agreements are merged herein.

App. 212

REQUEST FOR PROPOSAL

FOR

FINANCIAL SERVICES FOR

OFT CONTROLLED DISBURSEMENTACCOUNT

RFP NO. CFOPD-02-R-019

Bank of America

GOVERNMENT BANKING GROUPEdmund Bianchi, Senior Vice President, TeamLeader, Government Banking, (410) 605-5291

Robert W. Greco, Vice President, TreasuryManagement Officer, (202) 624-3700

Lynn Jackson, Assistant Vice President, TMMarketing Specialist, (202) 624-3721

June 2002

App. 213

Bank of America

Bank of America Government Banking10 Light Street, 16th FloorBaltimore, MD 21201-1499

June 24, 2002

Royce Thomas, Jr.Contract SpecialistDistrict of Columbia Government941 N. Capitol Street, N.E.Suite 800Washington, D.C. 20002

Dear Mr. Thomas:

We respectfully submit our proposal to provideControlled Disbursement banking services to theDistrict of Columbia Government. We certify that wehave read Solicitation No. CFOPD-02-R-019 and areable to provide all the services requested in the RFP.

Bank of America appreciates the current relationshipthat we have with the District of ColumbiaGovernment and look forward to continuing ourmutually beneficial relationship. Unlike other financialinstitutions in the region who have merger relatedissues to deal with, Bank of America is free to focus itsresources towards product development and clientfocused activities. Bank of America is confident that itsfocused commitment, its prudent use of sophisticatedtechnology, its highly experienced associates, and itsdedicated Government Banking group can provide

App. 214

solutions that will continue to satisfy the District ofColumbia Government’s needs. Our goal is to exceedyour expectations.

Our partnership with the District goes beyond thiscontract. We are a community partner, participating inthe District’s community related initiatives over theyears. We expect that involvement to continue in theyears to come.

Thank you for the opportunity to bid. We are availableto answer any questions and to meet to discuss thisproposal in more depth. We look forward to continuingdiscussions and more importantly a continuingrelationship. We want to continue to be the District’spartner.

Sincerely,

/s/Edmund A. BianchiEdmund A. BianchiSenior Vice President410-605-5291Fax: [email protected]

Robert W. GrecoVice President202-624-3700Fax: [email protected]

App. 215

TABLE OF CONTENTS

I. EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . 1Advantages of the Bank of AmericaProposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Relationship Management . . . . . . . . . . . . 4

II. TECHNICAL PROPOSALSpecifications/Scope of Work . . . . . . . . . . 5

Check Payment . . . . . . . . . . . . . . . . . . . . . 5Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Cashing District Government Checks . . . . 6Transfer of Funds . . . . . . . . . . . . . . . . . . . 6Overnight Investment . . . . . . . . . . . . . . . . 6Stop Payment Requests . . . . . . . . . . . . . . 7Full Account Reconciliation Service . . . . . 7File Transmission . . . . . . . . . . . . . . . . . . . 7Positive Pay/Match Pay . . . . . . . . . . . . . . 8Deposit Limitations and CollateralRequirements . . . . . . . . . . . . . . . . . . . . . . . 9Quality Requirements . . . . . . . . . . . . . . . 11Reporting Requirements . . . . . . . . . . . . . 12

Performance Disincentives andIncentives . . . . . . . . . . . . . . . . . . . . . . . . . . 17Statement of Experience and Capability . . . . . . . . . . . . . . . . . . . . . . . . . . 18Qualifications of Key Personnel . . . . . . . 19Summary of Firm’s Approach . . . . . . . . . 22

III. PRODUCT SOLUTIONSControlled Disbursement . . . . . . . . . . . . 24Account Reconciliation Plan (ARP) . . . . 26Positive Pay Services . . . . . . . . . . . . . . . . 31PerfectView+ CD ROM . . . . . . . . . . . . . . 34Automated Investment Service . . . . . . . . 35

App. 216

Bank of America Direct . . . . . . . . . . . . . . 36Wire Transfer . . . . . . . . . . . . . . . . . . . . . . 40Monthly Account Analysis . . . . . . . . . . . 41

Relationship Enhancements . . . . . . . . . 42View Point . . . . . . . . . . . . . . . . . . . . . . . . 42Statements and Reports On-line . . . . . . . 42

IV. BANK OF AMERICA PROFILEBank of America CommunityDevelopment Banking . . . . . . . . . . . . . 44

District of Columbia Banking Centers . . . . . . . . . . . . . . . . . . . . . . . . 47

1st Quarter Highlights . . . . . . . . . . . . 49References . . . . . . . . . . . . . . . . . . . . . . . 49Supplier Diversity and Development 50

V. SAMPLE REPORTS & INVESTMENT RATESDemand Deposit StatementAccount Analysis StatementOvernight Investment StatementAccount Reconciliation Plans (ARP) ReportsBank of America Direct Report Standard Input/Output FormatsHistorical Overnight Investment Rates

AGREEMENTS/DOCUMENTATIONTerms & Conditions for Treasury ServicesSignature Card & Resolution Wire Transfer FormsAutomated Investment Service AgreementBank of America Direct Profile Electronic Positive Pay Profile

2001 Annual Report Attached

App. 217

VI. C O S T P R O P O S A L S U B M I TTE DSEPARATELY

App. 218

AGREEMENTS/DOCUMENTATION

App. 219

Bank of America

Authorization and Agreement forTreasury Service

I am an authorized representative of the organizationspecified below (the “Client”). The Client has receivedBank of America’s Treasury Services Terms andConditions Booklet (the “Booklet”) and agrees to adhereto the Booklet and any applicable User Documentationfrom Bank of America (“Bank”). The Services coveredby the Booklet are listed on the accompanying List ofBanks and Services, which we may change from timeto time. Capitalized terms used in this Authorizationand Agreement form, not otherwise defined, have themeanings given to them in the Booklet.

After I sign below on behalf of the Client, the Clientmay from time to time request the Bank to provide anyof the Services described in the Booklet. The Clientmay begin to use any such Service, subject to theBank’s approval, once the Bank has received from theClient all required and properly executed forms and theClient has successfully completed any testing ortraining requirements. The Booklet supersedes otheragreements between the Client and the Bank, asdescribed under the General Matters heading in theBooklet, with regard to the provision of Services.

I warrant that the Client has taken all action requiredby its organizational or constituent documents toauthorize me to execute and deliver on behalf of theClient this Authorization and Agreement form and anyother documents the Bank may require with respect toService. I am authorized to enter into all transactions

App. 220

contemplated by the provision of Services to the Client.These may include, but are not limited to, giving theBank instructions with regard to Electronic FundsTransfer Services and designating employees or agentsto act in the name and on behalf of the Client.



partnership . . . . . . . . . all general partners*limited liabilitypartnership . . . . . . . . .



*Client’s charter or organizational or constituentdocuments may allow others to sign instead. Note than in most cases the Client must alsocomplete the Certification form which follows.

Date: _________________ [CLIENT’S LEGAL NAME]

Title: ____________________[Print or Type]

Signature

By:______________________

Name: __________________[Print or Type]

App. 221


____________________________________________________________________________________________________________________________________________

Telephone No.: ____________________ Fax No.: __________________________

Address for Bank Notices:Bank of America CorporationDocumentation ManagementP.O. Box 2718Concord, CA 94527-9904Fax Number: (925) 675-7131

and, if filled in, the following____________________________________________________________________________________________________________Fax No.:___________________

App. 222

Bank of America

Authorization and AgreementCertification


Guidelines for completion:If Client is a: Who must sign:corporation . . . . . . . . . . any authorized

officer, except it maynot be the sameofficer who signed theAuthorization andAgreement

limited liabilitycompany . . . . . . . . . . . .



partnership . . . . . . . . . any general partnerssole proprietorship . . . no signature requiredgovernmental entity . . the entity’s counsel,

or others permittedby the entity’sorganizationaldocuments

App. 223

Note: If Client is not a U. S. legal entity, it is notrequired to complete this certification.

Dated:______________ _____________________________ [CLIENT’S LEGAL NAME]

By: _________________________ [Signature]

Name: ______________________ [Print or Type]

Title: _______________________ [Print or Type]

App. 224

Bank of America

Treasury ServiceDelegation of Authority Form


By signing below, you authorize the incumbent of thespecified position listed in Section A or each personlisted in section B below, acting alone, to executedocuments that we may request, and any amendmentsor renewals thereof, pertaining to the use of Services,including but not limited to designating one or morepersons (which may include himself or herself)authorized to initiate, amend, cancel, confirm or verifythe authenticity of instructions to us for Services,whether given orally, electronically or by facsimileinstructions, and to revoke any authorization grantedto any such person, as he or she deems appropriate.The signer of this form has the same authoritydescribed above for each Service with us, unlessotherwise specified. We are entitled to rely upon thisdelegation until written notice of its revocation isreceived by us.

App. 225

Guidelines for Completion: Fill out either sectionA or section B, or both, depending on your needs. Todelegate authority to any person holding a specifictitle, fill out section A. To delegate authority tospecific individuals by name, fill out section B. Foreach name or title, indicate “All” in the “Service”column if the person or title has authority to signdocuments for all Services which you receive from us.Otherwise, indicate specific Services for which theperson or title has authority. For each name or title,indicate the entity or entities for which the person ortitle has authority to sign documents.

Client Authorization Instructions: The sameperson who signed the Authorization and Agreementfor Treasury Services form must sign this TreasuryServices Delegation of Authority form.



App. 226



Date: ___________________

_______________________ __________________________[SIGNATURE] [CLIENT’S LEGAL NAME]

_______________________[PRINT OR TYPE]

App. 227

REQUEST FOR PROPOSAL

FOR

FINANCIAL SERVICES FOR

OFT CONTROLLED DISBURSEMENTACCOUNT

RFP NO. CFOPD-02-R-019

Revised

Bank of America

GOVERNMENT BANKING GROUPEdmund Bianchi, Senior Vice President, TeamLeader, Government Banking, (410) 605-5291

Tammy Kennedy-Nichols, Vice President, SeniorTreasury Managment Officer, (410) 605-4383

June 2002 (Revised April 2005)

App. 228

TABLE OF CONTENTS

I. EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . 1Advantages of the Bank of AmericaProposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Relationship Management . . . . . . . . . . . . 4

II. TECHNICAL PROPOSALSpecifications/Scope of Work . . . . . . . . . . 5

Check Payment . . . . . . . . . . . . . . . . . . . . . 5Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Cashing District Government Checks . . . . 6Transfer of Funds . . . . . . . . . . . . . . . . . . . 6Overnight Investment . . . . . . . . . . . . . . . . 6Stop Payment Requests . . . . . . . . . . . . . . 7Full Account Reconciliation Service . . . . . 7File Transmission . . . . . . . . . . . . . . . . . . . 7Positive Pay/Match Pay . . . . . . . . . . . . . . 8Teller Positive Pay (Revised) . . . . . . . . . . . 9Deposit Limitations and CollateralRequirements . . . . . . . . . . . . . . . . . . . . . . 10Quality Requirements . . . . . . . . . . . . . . . 11Reporting Requirements (Revised) . . . . . 12

Performance Disincentives andIncentives . . . . . . . . . . . . . . . . . . . . . . . . . . 17Statement of Experience and Capability . . . . . . . . . . . . . . . . . . . . . . . . . . 18Qualifications of Key Personnel (Revised) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Summary of Firm’s Approach . . . . . . . . . 21

III. PRODUCT SOLUTIONSControlled Disbursement . . . . . . . . . . . . 23Account Reconciliation Plan (ARP) . . . . 25Positive Pay Services . . . . . . . . . . . . . . . . 30

App. 229

Image OnSite CD ROM(Revised) . . . . . . 33Automated Investment Service . . . . . . . . 34Bank of America Direct . . . . . . . . . . . . . . 35Wire Transfer . . . . . . . . . . . . . . . . . . . . . . 39Monthly Account Analysis (Revised) . . . 40

Relationship Enhancements . . . . . . . . . 42View Point . . . . . . . . . . . . . . . . . . . . . . . . 42Statements and Reports On-line . . . . . . . 42PayMode (Revised) . . . . . . . . . . . . . . . . . 43

IV. BANK OF AMERICA PROFILEBank of America CommunityDevelopment Banking . . . . . . . . . . . . . 45

District of Columbia Banking Centers . . . . . . . . . . . . . . . . . . . . . . . . 48

4th Quarter Highlights (Revised) . . . . 50References (Revised) . . . . . . . . . . . . . . . 50Supplier Diversity and Development . 51

V. SAMPLE REPORTS & INVESTMENT RATESDemand Deposit StatementAccount Analysis StatementOvernight Investment StatementAccount Reconciliation Plans (ARP) ReportsBank of America Direct Report Standard Input/Output FormatsHistorical Overnight Investment Rates (Revised)

AGREEMENTS/DOCUMENTATIONTerms & Conditions for Treasury ServicesSignature Card & Resolution Wire Transfer FormsAutomated Investment Service AgreementBank of America Direct Profile Electronic Positive Pay Profile

App. 230

VI. C O S T P R O P O S A L S U B M I TTE DSEPARATELY

App. 231

AGREEMENTS/DOCUMENTATION

App. 232

Bank of America

Authorization and Agreement forTreasury Service

I am an authorized representative of the organizationspecified below (the “Client”). The Client has receivedBank of America’s Treasury Services Terms andConditions Booklet (the “Booklet”) and agrees to adhereto the Booklet and any applicable User Documentationfrom Bank of America (“Bank”). The Services coveredby the Booklet are listed on the accompanying List ofBanks and Services, which we may change from timeto time. Capitalized terms used in this Authorizationand Agreement form, not otherwise defined, have themeanings given to them in the Booklet.

After I sign below on behalf of the Client, the Clientmay from time to time request the Bank to provide anyof the Services described in the Booklet. The Clientmay begin to use any such Service, subject to theBank’s approval, once the Bank has received from theClient all required and properly executed forms and theClient has successfully completed any testing ortraining requirements. The Booklet supersedes otheragreements between the Client and the Bank, asdescribed under the General Matters heading in theBooklet, with regard to the provision of Services.

I warrant that the Client has taken all action requiredby its organizational or constituent documents toauthorize me to execute and deliver on behalf of theClient this Authorization and Agreement form and anyother documents the Bank may require with respect toService. I am authorized to enter into all transactions

App. 233

contemplated by the provision of Services to the Client.These may include, but are not limited to, giving theBank instructions with regard to Electronic FundsTransfer Services and designating employees or agentsto act in the name and on behalf of the Client.



partnership . . . . . . . . . all general partners*limited liabilitypartnership . . . . . . . . .



*Client’s charter or organizational or constituentdocuments may allow others to sign instead. Note than in most cases the Client must alsocomplete the Certification form which follows.

Date: _________________ [CLIENT’S LEGAL NAME]

Title: ____________________[Print or Type]

Signature

By:______________________

Name: ___________________[Print or Type]

App. 234


____________________________________________________________________________________________________________________________________________

Telephone No.: ____________________ Fax No.: __________________________

Address for Bank Notices:Bank of America CorporationDocumentation ManagementP.O. Box 2718Concord, CA 94527-9904Fax Number: (925) 675-7131

and, if filled in, the following____________________________________________________________________________________________________________Fax No.:___________________

App. 235

Bank of America

Authorization and AgreementCertification


Guidelines for completion:If Client is a: Who must sign:corporation . . . . . . . . . . any authorized

officer, except it maynot be the sameofficer who signed theAuthorization andAgreement

limited liabilitycompany . . . . . . . . . . . .



partnership . . . . . . . . . any general partnerssole proprietorship . . . no signature requiredgovernmental entity . . the entity’s counsel,

or others permittedby the entity’sorganizationaldocuments

App. 236

Note: If Client is not a U. S. legal entity, it is notrequired to complete this certification.

Dated:______________ _____________________________ [CLIENT’S LEGAL NAME]

By: _________________________ [Signature]

Name: ______________________ [Print or Type]

Title: _______________________ [Print or Type]

App. 237

Bank of America

Treasury ServiceDelegation of Authority Form


By signing below, you authorize the incumbent of thespecified position listed in Section A or each personlisted in section B below, acting alone, to executedocuments that we may request, and any amendmentsor renewals thereof, pertaining to the use of Services,including but not limited to designating one or morepersons (which may include himself or herself)authorized to initiate, amend, cancel, confirm or verifythe authenticity of instructions to us for Services,whether given orally, electronically or by facsimileinstructions, and to revoke any authorization grantedto any such person, as he or she deems appropriate.The signer of this form has the same authoritydescribed above for each Service with us, unlessotherwise specified. We are entitled to rely upon thisdelegation until written notice of its revocation isreceived by us.

App. 238

Guidelines for Completion: Fill out either sectionA or section B, or both, depending on your needs. Todelegate authority to any person holding a specifictitle, fill out section A. To delegate authority tospecific individuals by name, fill out section B. Foreach name or title, indicate “All” in the “Service”column if the person or title has authority to signdocuments for all Services which you receive from us.Otherwise, indicate specific Services for which theperson or title has authority. For each name or title,indicate the entity or entities for which the person ortitle has authority to sign documents.

Client Authorization Instructions: The sameperson who signed the Authorization and Agreementfor Treasury Services form must sign this TreasuryServices Delegation of Authority form.



App. 239



Date: ___________________

_______________________ __________________________[SIGNATURE] [CLIENT’S LEGAL NAME]

_______________________[PRINT OR TYPE]

App. 240

SOLICITATION, OFFER AND AWARDNO. CFOPD-02-R-019Issued May 22, 2002

[Fold Out Exhibit, see next 2 pages][Additional selected pages of the District ofColumbia’s RFP continue on App. 241-252]

App. 241

* * *

Page 42 of 69

CFOPD-02R-019 OFT Controlled DisbursementBank Account

PART I - SECTION G

CONTRACT ADMINISTRATION DATA

G.1 Payment/Invoices

a. Invoices shall conform to Contract ClauseI-27, Invoices, in the basic agreement. Unlessotherwise stipulated in individual authorizedorders, the Contractor shall submit invoices, to:

Office of the Chief Financial Officer of theDistrict of Columbia ATTN: Financial Operations/Accounts Payable410 E. Street NWWashington DC 20001Tel. 202-7270380

b. Billing Increments. The contractor may invoicethe government for services performed inincrements agreeable to the administrator of thiscontract. Claims for reimbursement of expensesshall be invoiced separately from invoices forservices performed but may be submitted asincurred at the contractor’s option. Claims forreimbursement of travel expenses incurred as aresult of temporary official duty travel away fromWashington D.C., shall be submitted no later than8 days after the conclusion of the travel.

App. 242

c. Payment of invoices is contingent upon thepaying office’s receipt of a signed and dated“Receipt/Inspection/Acceptance” report from thecontracting officer. To facilitate payment, theContractor may request, in lieu of waiting for thepaying office’s receipt of a completed acceptancereport, that the contracting officer annotate theContractor’s periodical invoices to reflect thatservices have been received in compliance withrequirements of this contract, and that the hoursbilled are correct and proper. The Contractor maythen hand carry the annotated invoice to the payingoffice. The paying office’s obligation to thecontractor with respect to hand carried invoices islimited to acceptance of the invoice(s) and placing ofthem into the system used to process payments.

Page 43 of 69

G.2 Contracting Officer

1. Contracting Officer is located and may becontacted at:

Office of Government Business Suite 810941 North Capitol Street, N.E. Washington, D.C. 20002Phone: 202-442-6427Fax: 202-442-6454

2. The Contracting Officer is the only officialauthorized to contractually bind theDistrict.

App. 243

G.3 Contract Administrator

1) The Contracting Officer appoints thefollowing individual as ContractAdministrator.

Mr. Alcindor RosierOffice of Finance and TreasuryOffice of the Chief Financial Officer Government of the District of Columbia Phone: 202-727-6055Fax: 202-727-6049

2) The Administrator will, have theresponsibility of ensuring that the workconforms to the requirements of thecontract. Any additional responsibilitiesand authorities shall be only those thatthe Contracting Officer specifies in theletter of appointment. The ContractAdministrator shall not have authority tomake changes in the scope or terms andconditions of the contract or to order extragoods or services beyond the quantities ortime periods provided in the Schedule.

3) THE RESULTANT CONTRACTOR ISHEREBY FOREWARNED THATABSENT THE REQUISITE AUTHORITYOF THE CONTRACT OFFICER TOMAKE ANY SUCH CHANGES,CONTRACTOR MAY BE DENIEDCOMPENSATION OR OTHER RELIEFFOR ANY ADDITIONAL WORKPERFORMED THAT IS NOT SOAUTHORIZED, AND MAY ALSO BE

App. 244

REQUIRED, AT NO ADDITIONAL COSTTO THE DISTRICT, TO TAKE ALLC O R R E C T I V E A C T I O NNECESSITATED BY REASON OF THEUNAUTHORIZED CHANGES.

* * *

Page 46 of 69

Contracting Officer within 10 days of contract award. The policies of insurance shall provide for at least 30days’ written notice to the District prior to theirtermination or material alteration.

H.2 Other Contractors

The Contractor shall not commit or permit anyact, which will interfere with the performance ofwork done by any other District Contractor or byany District employee. If another Contractor isawarded a future contract for performance of therequired services, the original Contractor shallcooperate fully with the District and the newContractor in any transition activities which theContracting Officer deems necessary during theterm of the contract.

H.3 Changes

Only the Contracting Officer is authorized tomake changes to the terms and conditions of thiscontract. In addition only the ContractingOfficer or his/her designated ordering officer isauthorized to make modifications to thiscontract. The scope of work may NOT beexpanded through issuance of a modification.

App. 245

Price Adjustments. No supplement, surcharge,or other fee or charge in addition to the hourlyrate applicable under this contract may be made. In the event an invoice is issued for a higherhourly rate not in the Schedule at Part I -Section B, the government has the right toeither make an appropriate adjustment withoutnotice to the Contractor or reject the invoice. The government’s liability for prompt paymentstarts only upon receipt of a proper invoice asdefined in the section in the contract relating toinvoices in Part III - Section I, Contract Clauses.

H.7 Ownership

The Office of the Chief Financial Officermaterials supplied to the Contractor, shallremain the property of the government and mustbe returned to that office upon completion ofwork under this contract.

Page 47 of 69

PART II - SECTION I

CONTRACT CLAUSES

1. Order of Precedence and ContractAny inconsistency in this solicitation shall be resolvedby giving precedence in the following order (ifprovided):

A. The ScheduleB. The Statement of WorkC. Special Contract RequirementsD. Contract Clauses

App. 246

2. Laws and Regulations Incorporated byReferenceThe provisions of the following Acts, andrepresentations and stipulations required by any of thesaid Acts together with the provisions of applicableregulations made pursuant to said Acts, are herebyincorporated by reference and, to the extent applicable,incorporated by reference in this contract, togetherwith the Laws of the District of Columbia, and theMaterial Management Manual, effective July 1, 1974,as amended.A. Contract Work Standards Act of August 13, 1962,also known as the Contract Work Hours and SafetyStandards Act of 1962, 76 Stat. 357-360.B. Buy American Act, Act of March 3, 1983, c.212, TitleIII, 47 Stat. 1520, as amended.C. Walsh-Healy Public Contracts Act, Act of June 30,1936, c.881, 49 Stat. 2036, as amended. (Applies onlywhen contract is $10,000 or more).D. Commissioner’s Order 73-51 dated February 28,1973 as amended, “Compliance with Equal OpportunityObligations in Contracts”.E. Public Law 93-112 Rehabilitation Act of 1973Section 504 as amended.F. Mayor’s Order 83-265 dated November 9, 1983Subject: Employment Agreement Goals and Objectivesfor all District of Colombia Projects.G. D.C. Law 5-93, Dated May 9, 1984, the First SourceEmployment Agreement Act of 1984.mH. Procurement Practices Act of 1985, D.C. Law 6-110.I. Medicaid Regulations at 42 C.F. R. §§ 447.361 &447.362

App. 247

3. WaiverThe waiver of any breach of the contract will notconstitute a waiver of any subsequent breach thereof,nor a waiver of the contract.

4. IndemnificationThe Contractor shall indemnify and save harmlessDistrict and all its officers, agents, and servantsagainst any and all claims or liability arising from orbased on, or as a consequence of or result of, any act,omission or default of the Contractor, its employees, orits subcontractors, in the performance of this contractor any confidentially agreement required under thiscontract. Moneys due or to become due to theContractor under the contract may be retained by theDistrict as necessary to satisfy any outstanding claimwhich the District may have against the Contractor.

5. TransferThe parties to whom the award is made therein shalltransfer no contract or any interest; such transfer willbe null and void and will be cause to annul thecontract.

6. TaxesThe Government of the District of Columbia is exemptfrom, and will not pay, Federal Excise Taxes and D.C.or state Sales and Use Taxes. OFFERORS MUSTEXCLUDE SUCH TAXES, AS WELL AS STATE ANDCITY TAXES FROM THEIR PROPOSALS. Taxexemption certificates are no longer issued by theDistrict for Federal Excise Tax. The followingstatements, as appropriate, may be used byContractors when claiming tax deductions for FederalExcise Tax exempt items sold to the District:

App. 248

“The District of Columbia government is exemptfrom Federal Excise Tax. Tax ExemptionRegistration Nr. 52-73-0206-K from the InternalRevenue Service, Baltimore MD.”

OR

“Exempt from Maryland Sales Tax, Registeredwith the Comptroller of the Treasury (fordeliveries to District Departments or Agencies -Exemption Nr. 09339”

7. Officials Not To BenefitNo member of or delegate to Congress, or Officer oremployee of District shall be admitted to any share orpart of this contract or to any benefit that may arisetherefrom, and any contract made by the ContractingOfficer of any District employee authorized to executecontracts in which they or the employee of the Districtshall be personally interested shall be void, and nopayment shall be made thereon by the District or anyofficer thereof, but this provision shall not be construedto extend to this contract if made with a corporation forits general benefit. However, should a Federal orDistrict employee submit a bid for his personal benefit,the Contracting Officer reserves the right to waive theaforementioned restriction; providing that saidemployee furnishes a Notarized Affidavit prior to thetime set for opening of bids, setting forth intentions toresign his Federal or District employment in the eventsaid employee shall be considered for an award ofcontract. Failure to submit such Affidavit shallautomatically render his bid non-

App. 249

Page 48 of 69

responsive and no further consideration shall be giventhereto. (See Representations, Certifications andAcknowledgments, Section K).

8. DisputesA. If a dispute arises under or relates to the contract,a claim by the Contractor shall be made in writing andsubmitted to the Contacting Officer for a writtendecision. A claim by the District against theContractor shall be subject to a written decision by theContracting Officer.B. “Claim,” as used in this clause, means a writtendemand or written assertion by one of the contractingparties seeking, as a matter of right, the payment ofmoney in a sum certain, the adjustment orinterpretation of contract terms, or other relief arisingunder or related to the contract. A claim arising undera contract, unlike a claim relating to that contract, is aclaim that can be resolved under a contract clause thatprovides for the relief sought by the claimant. C. the decision of the Contracting Officer shall be finaland conclusive and not subject to review by any forum,tribunal or Government agency.

9. ChangesThe Contracting Officer may, at any time, by writtenorder, and without notice to the surety, if any, makechanges in the contract within the general scope hereof. If such changes cause an increase or decrease in thecost of performance of this contact, or in the timerequired for performance, an equitable adjustmentshall be made. Any claim for adjustment under thisparagraph must be asserted within ten (10) days fromthe date the change is offered, provided, however, that

App. 250

the Contracting Officer, if he determines that the factsjustify such action, may receive, consider and adjustany such claim asserted at any time prior to the date offinal settlement of the contract. If the parties fail toagree upon the adjustment to be made, the failure toagree shall be considered a dispute. Nothing in thisclause shall excuse the Contractor from proceedingwith the contract as changed.

10. Termination for DefaultA. The District may, subject to the provisions ofparagraph C., below, by written notice of default to theContractor, terminate the whole or any part of thiscontract in any one of the following circumstances: (i) If the Contractor fails to make delivery of thesupplies or to perform the services within the timespecified within the project work plan or any extensionthereof; or (ii) If the Contractor fails to perform any ofthe other provisions of this contract, or so fails to makeprogress as to endanger performance of this contract inaccordance with its terms and in either of these twocircumstances does not cure such failure within aperiod of ten (10) days (or such longer period as theContractor may authorize in writing) after receipt ofnotice from the Contracting Officer specifying suchfailure. B. In the event the District terminates this contract inwhole or part as provided in paragraph A. above, theDistrict may procure, upon such terms and in suchmanner as the Contracting Officer may deemappropriate, supplies or service similar to those soterminated; and the Contractor shall be liable to theDistrict for any excess costs for similar supplies orservice. Provided, that the Contractor shall continuethe performance of this contract to the extend not

App. 251

terminated under provisions of this clause. TheContractor shall work with any subsequent contractorto ensure a smooth transfer of information for a periodof sixty (60) days.C. Except with respect to defaults of subcontractors,the Contractor shall not be liable for any excess costs ifthe failure to perform the contract arises out of causesbeyond the control and without the fault or negligenceof the contractor. Such causes may include, but are notrestricted to, acts of God or of public enemy, acts of theDistrict or Federal Government in either theirsovereign or contractual capacity, fires, floods,epidemics, quarantine restrictions, strikes, freightembargoes, and unusually severe weather; but in everycase the failure to perform must be beyond the controland without the fault or negligence of the Contractor. If the failure to perform is caused by the default of thesubcontractor, and if such default arises out of causesbeyond the control of both the Contractor and thesubcontractor, and without the fault or negligence ofeither of them, the Contactor shall not be liable for anyexcess cost for failure to perform, unless the supplies orservices to be furnished by the contractor wereobtainable from other sources in sufficient time topermit the Contractor to meet the required deliveryschedule. D. If this contract is terminated as provided inparagraph A. Above, District in addition to any otherrights provided in this clause, may require theContractor to transfer title and deliver to the District,in the manner and to the extent directed by theContracting Officer, (i) completed supplies, (ii) suchpartially completed supplies and materials,information, and contract rights (herein after called“manufacturing materials”) as the Contractor has

App. 252

specifically produced or specifically produced orspecifically acquired for the performance beenterminated; and the Contractor, shall, upon directionof the Contacting Officer, protect and preserve propertyin possession of the Contactor in which the District hasan interest. Payment for completed supplies deliveredto and accepted by the District shall be at the contractprice. Payment for manufacturing materials deliveredto and agreed upon by the Contractor and ContactingOfficer, failure to agree to such amount shall be adispute concerning a question of fact. The District maywithhold from amounts otherwise due the Contractorfor such completed supplies or manufacturingmaterials such sums as the Contracting Officedetermines to be necessary to protect the Districtagainst loss because of outstanding liens or claims offormer lien holders.E. If after notice of termination of this contract underthe provisions of this clause, it is determined for anyreason that the Contractor was not in default under theprovision of this clause, or that the default wasexcusable under the provisions of this clause, the rightsand obligations of the parties shall, if the contractcontains a clause providing for a termination forconvenience be the same as if the notice of terminationhad been issued pursuant to such clause. SeeParagraph 14, below “Termination for Convenience ofthe District.”F. The rights and remedies of District provided in thisclause shall not be exclusive and are in addition to anyrights and remedies provided by law or under thiscontract. G. As used in paragraph C. Above, the terms“subcontractor” and “subcontractors” meanssubcontractor(s) at any tier.

App. 253

APPENDIX J

IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

Civil Action No. 2008 CA 007763 B

[Filed January 16, 2009]___________________________________THE DISTRICT OF COLUMBIA, )

)Plaintiff, )

)v. )

)BANK OF AMERICA, N.A., BANK )OF AMERICA CORPORATION, )JAYRECE ELAINE TURNBULL, )HARRIETTE WALTERS, )WALTER R. JONES, JR., and )several JOHN and JANE DOES )presently unknown, )

)Defendants. )

___________________________________ )

Judge Joan ZeldonNext Court Date: February 5, 2009

Event: Status Hearing

App. 254

BANK OF AMERICA’S MOTION TO DISMISSOR, IN THE ALTERNATIVE, STAY BASED ON

FORUM SELECTION AND ARBITRATION CLAUSES

Pursuant to Rule 12 of the Superior Court Rules ofCivil Procedure and 9 U.S.C. § 3, Defendants Bank ofAmerica, N.A. and Bank of America Corporation(together “Bank of America” or “Bank”) respectfullymove this Court to dismiss, without prejudice, theclaims asserted against them in the First AmendedComplaint filed by the District of Columbia (the“District”) on the grounds that the District’s assertionof these claims in this forum violates (1) a mandatoryforum selection clause in the contract between theDistrict and Bank of America that requires anyproceeding regarding the District’s account at issue bebrought in North Carolina, and (2) a mandatoryarbitration clause in the contract that requires anydispute or controversy concerning the District’s accountat issue be arbitrated. Alternatively, Bank of Americarespectfully moves that the District’s claims againstBank of America be stayed in favor of arbitration.

Pursuant to Rule 12-I(a), counsel for Bank ofAmerica certifies that counsel for the District hasrefused to consent to this motion. Counsel for Bank ofAmerica cannot contact Defendants Jayrece Turnbulland Harriette Walters because they are currentlyincarcerated, and no attorney has made an appearancein this case on their behalf. Despite diligent efforts,counsel for Bank of America has not been able tocontact Defendant Walter Jones to obtain his consentto this motion.

App. 255

Pursuant to Rule 12-I(f), Bank of Americarespectfully requests an oral argument for this motion.

WHEREFORE, for the reasons stated herein andthe accompanying Memorandum in Support of Bank ofAmerica’s Motion to Dismiss or, in the Alternative,Stay Based on Forum Selection and ArbitrationClauses, Bank of America respectfully requests that itsmotion be granted, and that the District’s claimsagainst Bank of America be dismissed withoutprejudice or, in the alternative, stayed in favor ofarbitration.

ORAL HEARING REQUESTED.

This the 16th day of January, 2009.

Respectfully submitted,

/s/ Timothy J. Heaphy Timothy J. Heaphy (Bar No. 444881)MCGUIREWOODS LLPWashington Square1050 Connecticut Avenue N.W.Suite 1200Washington, DC 20036-5317Tel: 202.857.1723Fax: 202.857.1737Email: [email protected]

COUNSEL FOR BANK OF AMERICA,N.A. AND BANK OF AMERICACORPORATION

App. 256

/s/ Robert I. Swain Robert I. Swain (Bar No. 974632)MCGUIREWOODS LLPWashington Square1050 Connecticut Avenue N.W.Suite 1200Washington, DC 20036-5317Tel: 202.857.1720Fax: 202.828.2993Email: [email protected]

COUNSEL FOR BANK OF AMERICA,N.A. AND BANK OF AMERICACORPORATION

App. 257

APPENDIX K

Form 1. Notice of Appeal (Tax, Civil, Family(Except Juvenile Cases), and Probate).

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

NOTICE OF APPEAL (______CROSS APPEAL)TAX, CIVIL, FAMILY (EXCEPT JUVENILE

CASES) , AND PROBATE

Superior Court Case Caption: D.C. v. BANK OFAMERICA, N.A. , BANK OF AMERICACORPORATION, et. al

Superior Court Case No.: 2008 CA 007763 B

A. Notice is given that (person appealing) BANK OFAMERICA, N.A. and BANK OF AMERICACORPORATION is appealing an order/judgmentfrom the:

G Tax Division GT Civil Division G Family Court

G Probate Division

1. Date of entry of judgment or order appealed from (ifmore than one judgment or order appealed, list all):December 9, 2009 (See Attachment 1 incorporatedherein by reference).

2. Filing date of any post-judgment motion: _______

3. Date of entry of post-judgment order: _________

4. Superior Court Judge: JOAN ZELDON

App. 258

5. Is the order final (i.e., disposes of all claims and hasbeen entered by a Superior Court Judge, not aMagistrate Judge)? G YES GT NO

If no, state the basis for jurisdiction: seeAttachment 2 incorporated herein by reference

Has there been any other notice of appeal filedin this case: G YES GT NO If so, list the otherappeal numbers: ___________________________

6. If this case was consolidated with another case inthis court, list the parties’ names and the SuperiorCourt case number: ________________________________

B. Type of Case:

GT Civil I G Civil II GLandlord and Tenant

G Neglect G TPR G Adoption G Guardianship

G Mental Health G Probate G Intervention

C. Indicate Status of Case:

GT Paid G In Forma Pauperis G CCAN

Was counsel appointed in the trial court?

GT YES G NO

D. Provide the names, addresses, and telephonenumbers of all parties to be served. For personsrepresented by counsel, identify counsel and whomthe counsel represents. For each person, statewhether the person was a plaintiff or defendant inthe Superior Court (use additional sheets of paperif necessary):

App. 259

NAME ADDRESS PARTYSTATUS(Plaintiff,Defendant)

TELE-PHONENOS.

See Attach- ment 3 incorporated herein by reference




E. Identify the portions of the transcript needed forappeal, including the date of the proceeding, the nameof the Court Reporter (or state that the matter wasrecorded on tape if no Court Reporter was present), thecourtroom where the proceeding was held, and the datethe transcript was ordered, or a motion was filed forpreparation of the transcript.1 Attach additional pagesif needed.

1 Appellant is responsible for ordering transcript(s) from the CourtReporting and Central Recording Division, Room 5500. If appellanthas been granted In Forma Pauperis status, or had an attorneyappointed by the Family Court, and transcript is needed for thisappeal, appellant must file a Motion for Transcript in the AppealsCoordinator’s Office, Room 3148. That office number is (202) 879-1731. If that motion is granted, transcript will be prepared at nocost to appellant.

App. 260

Date ofProceeding/Portion

Reporter/Courtroom

Date ordered

See Attachment 4 incorporated herein by reference

See Attachment4 incorporated herein by reference

See Attachment4 incorporated herein by reference

Check this box if no transcript is needed for thisappeal.

F. Person filing appeal:

G Plaintiff Pro Se G Defendant Pro Se

G Third Party/Intervenor G Counsel for Plaintiff

GT Counsel for Defendant

ATTACH A COPY OF THE ORDER, JUDGMENTOR DOCKET ENTRY FROM WHICH THISAPPEAL IS TAKEN

ROBERT I. SWAIN Print Name of Appellant/Attorney

/s/Robert Swain 974632 Signature Bar No.

1050 CONNECTICUT AVENUE N.W., SUITE 1200,WASHINGTON, DC 20036-6317 Address

202.857.1720 Telephone Number

See Attachment 5 incorporated herein by reference

App. 261

FORM 1: NOTICE OF APPEAL (CIVIL)

SUPERIOR COURT CASE2008 CA 007763 B

ATTACHMENT 1

Response to Section A.1 (regarding order appealed from)

Bank of America, N.A. and Bank of AmericaCorporation (together “Bank of America” or “Bank”)also note that they filed with the Superior Court onDecember 23, 2009, a Motion to Alter or Amend Orderto Certify Certain Legal Questions to the District ofColumbia Court of Appeals and Motion for ExpeditedReview (“Motion”) under District of Columbia SuperiorCourt Civil Rule 59(e). This Motion is currentlypending before the Superior Court. If this Motion isgranted, the Bank intends to seek discretionary reviewunder D.C. Code § 11-721(d) and D.C. Appellate CourtRule 5(a) along with its appeal as of right.

App. 262

FORM 1: NOTICE OF APPEAL (CIVIL)

SUPERIOR COURT CASE2008 CA 007763 B

ATTACHMENT 2

Response to Section A.5(regarding the basis for appellate jurisdiction)

Under District of Columbia Code § 11-721, Bank ofAmerica is entitled to an interlocutory appeal as ofright based on the Superior Court’s denial of its motionto compel arbitration. 2200 M St. LLC v. Mackell, 940A.2d 143, 147 n.2 (D.C. 2007) (“An order denying amotion to compel arbitration is a final, appealableorder ... and this court therefore may exercisejurisdiction over this matter pursuant to D.C. Code§ 11-721, granting jurisdiction over appeals from allfinal orders and judgments of the Superior Court of theDistrict of Columbia.”); Woodland Ltd. P’ship v. Wulff,868 A.2d 860, 863 (D.C. 2005) (noting interlocutoryappeal from trial court’s order staying arbitrationproceedings is proper); Masurovsky v. Green, 687 A.2d198, 201 n.1 (D.C. 1996) (stating that the Court ofAppeals has jurisdiction “because the trial court’sdenial of the motion to compel arbitration ‘frustratedarbitration.”’); Umana v. Swidler & Berlin, 669 A.2d717, 723 (D.C. 1995) (interlocutory orders denyingarbitration are appealable under D.C. Code § 11-721(a)(1)); Friend v. Friend, 609 A.2d 1137, 1138-39(1992) (denial of motion seeking dismissal on theground that a contract requires arbitration isimmediately appealable); Hercules & Company, LTD v.Beltway Carpet Service, Inc., 592 A.2d 1069, 1071(1991) (“the denial of a motion to compel arbitration ...

App. 263

shall be deemed final for purposes of an appeal.”);Brandon v. Hines, 439 A.2d 496, 509 (1981) (a trialcourt’s order denying arbitration is an appealableinterlocutory order)

9 U.S.C. § 16(a)(1)(A) of the Federal Arbitration Act(“FAA”) also provides an immediate right to appeal ofthe denial of the motion to compel arbitration eventhough the parties were in state court because thecontract at issue is governed by the FAA. See TriarchIndustries, Inc. v. Crabtree, 158 S.W.3d 772, 774 (Mo.2005).

App. 264

APPENDIX L

IN THEDISTRICT OF COLUMBIA

COURT OF APPEALS

Appeal No. 10-OA-22 / Superior Court Case No. 10-CV-000078

[Filed November 15, 2010]________________________________BANK OF AMERICA, N.A. and )BANK OF AMERICA )CORPORATION, )

)Appellant, )

)v. )

)THE DISTRICT OF COLUMBIA, )

)Appellee. )

________________________________ )

CERTIFICATION REQUIRED BY RULE28(A)(2) OF THE RULES OF THE DISTRICT

OF COLUMBIA COURT OF APPEALS

The undersigned, counsel of record for Bank ofAmerica, N.A. and Bank of America Corporation(together “Bank of America” or “Bank”), certifies thatthe following listed parties appeared below:

App. 265

Bank of America, N.A. AppellantsBank of America CorporationRobert I. Swain (Bar No. 974632) Counsel for AppellantsAva E. Lias-Booker (admitted pro hac vice)Brian A. Kahn (admitted pro hac vice)Michelle N. Lipkowitz (admitted pro hac vice)MCGUIREWOODS LLP2001 K Street N.W., Suite 400Washington, DC 20006Tel: 202.857.1720 / Fax: 202.828.2993Email: [email protected]

The District of Columbia AppelleeStacy L. Anderson Counsel for AppelleeAssistant of the Solicitor GeneralOffice of the Attorney General for the District of Columbia441 4th Street, N.W., Suite 600SWashington, DC 20001

STATEMENT OF THE ISSUESPRESENTED FOR REVIEW

I. Did the District of Columbia Superior Court(“Superior Court”) err in holding that the D.C.Procurement Practices Act (“DC PPA”) withheldauthority from the District’s Office of the ChiefFinancial Officer (“OCFO”) to agree to arbitratedisputes with the Bank where (i) the Supreme Courtheld in Preston v. Ferrer, 552 U.S. 346 (2008), that theFederal Arbitration Act (“FAA”) preempts state lawspurporting to vest exclusive jurisdiction over disputesin other forums and (ii) the OCFO is exempt from theDC PPA?

App. 266

II. Did the Superior Court fail to adhere to theFAA’s presumption of arbitrability through themisapplication of contract integration principles, thecreation of a conflict between dispute resolutionprovisions where none existed, and the application ofthe DC PPA where the District’s claims were outsidethe jurisdiction of the DC PPA?

III. Did the Superior Court err in not recognizingthe District’s ratification of its agreement to arbitrate?

IV. Did the Superior Court err by decidingquestions of arbitrability instead of referring thoseissues to the arbitrator, in contravention of Rent-A-Center West v. Jackson, 2010 U.S. LEXIS 4981 (2010),and Buckeye Check Cashing v. Cardegna, 546 U.S. 440(2006) where (i) the parties’ validly-executedagreements set forth an arbitration clauseincorporating the AAA Rules and (ii) the SuperiorCourt’s decision to invalidate a 2000 CorporateResolution executed by the District’s CFO resulted ina challenge to certain agreements in their entirety?

V. Did the Superior Court err in not applyingthe parties’ forum selection clauses?