[00:00:02] Speaker 00:
Our first case for today is 2014-5146, Bannon versus United States.

[00:00:12] Speaker 00:
Mr. Huffman, please proceed.

[00:00:24] Speaker 04:
Good morning.

[00:00:25] Speaker 04:
May it please the court.

[00:00:27] Speaker 04:
My name is Justin Huffman from the Camaro law firm in Auburn, New York.

[00:00:31] Speaker 04:
I represent Banham, Inc., the appellants in this matter.

[00:00:35] Speaker 04:
To be clear here, what Banham is challenging is the BOP's decision to eliminate Banham from the competitive range, despite a reasonable request for an extension given the circumstances in this matter.

[00:00:51] Speaker 04:
Banham's recitation of the history of this procurement simply highlights the BOP's history of bias against Banham, especially in regards to this procurement.

[00:01:01] Speaker 04:
I'd like to point the court to the Galen II case, which we cite in our brief.

[00:01:05] Speaker 06:
Did your client ever obtain the necessary zoning to have violent offenders present in its facility?

[00:01:16] Speaker 04:
During the initial procurement they had, but what had occurred here was that... I know, you had to move.

[00:01:24] Speaker 06:
So did you ever obtain it?

[00:01:26] Speaker 04:
They did not because they were eliminated from the

[00:01:29] Speaker 04:
they were eliminated from the competitive range before they could, they were given the opportunity to do so.

[00:01:36] Speaker 06:
They had the opportunity to do it, did they not?

[00:01:39] Speaker 04:
Well, they had asked for an extension in order to, due to the circumstances here, to obtain... The circumstances were that they applied late.

[00:01:52] Speaker 04:
Well, that's not entirely what occurred here.

[00:01:57] Speaker 04:
What occurred was that

[00:01:59] Speaker 04:
BANM had obtained BANM zoning on its originally proposed facility at last.

[00:02:05] Speaker 04:
And when the BOP issued its corrective action in reconsidering the proposals due to the passage of time there, BANM zoning had lapsed.

[00:02:19] Speaker 04:
And because a school building had moved in nearby, it was unable to reestablish zoning at that site.

[00:02:27] Speaker 04:
So it was required to go back.

[00:02:30] Speaker 01:
It got an extension of time to do that, right?

[00:02:33] Speaker 04:
They had requested an extension were given.

[00:02:36] Speaker 01:
I thought there was like a stutter stop.

[00:02:38] Speaker 01:
There was a first attempt and that didn't work out.

[00:02:40] Speaker 01:
And actually you filed a protest and went through a whole protest and the agency says, oh no, we'll let you start all over again.

[00:02:48] Speaker 04:
Well, they had zoning originally.

[00:02:51] Speaker 04:
They had submitted it a couple of weeks late.

[00:02:54] Speaker 01:
Well, that's a little problem, isn't it?

[00:02:57] Speaker 01:
I mean, it says you're supposed to have proof of zoning, what, within 60 days before a certain date and you didn't have it?

[00:03:04] Speaker 04:
And that's a matter of discretion for the field.

[00:03:07] Speaker 01:
Right, but I mean, time is time.

[00:03:09] Speaker 01:
It's not uncommon that if there's a time you're supposed to have some prerequisite satisfied by a date certain and you don't, then you didn't qualify.

[00:03:19] Speaker 01:
Well, Your Honor, we had contended that because... It was not a world full of grace government contracting, as you know.

[00:03:27] Speaker 01:
There are requirements.

[00:03:29] Speaker 04:
Well, Your Honor, that issue was a matter of discretion and we contend that because... Because you already have abuse of discretion?

[00:03:37] Speaker 04:
Yes, Your Honor.

[00:03:38] Speaker 04:
We have contended that because eliminating Bannon from the competitive range and when the BOP... I would double back and say that at the time the BOP did so,

[00:03:49] Speaker 04:
They had, at the time the BOP even considered eliminating BANUM from the competitive range, they had already had BANUM's zoning certificate in its hand.

[00:04:02] Speaker 04:
So by eliminating BANUM, they eliminated competition and created a... Was that at the new facility?

[00:04:10] Speaker 04:
No, this is still... That's the first time around, right?

[00:04:13] Speaker 01:
Right.

[00:04:14] Speaker 01:
And that, I would have thought all of the alleged, the supposed government

[00:04:19] Speaker 01:
Mistakes in the first door around were wiped clean by the government's saying, okay, we'll start all over again Well, the problem why isn't that so?

[00:04:29] Speaker 01:
I mean you've got you were put out of contention and you came in and said Oh goodness, this isn't supposed to be a single source contract It's supposed to be competitive.

[00:04:38] Speaker 01:
We've been knocked out and the government says I guess you're right.

[00:04:41] Speaker 01:
We'll reopen

[00:04:43] Speaker 01:
Why doesn't that cure any possible government mistakes before the reopening?

[00:04:50] Speaker 04:
Well, it's our contention that the BOP was aware that we would have, that Bantam would have a zoning problem at that time because at the time they had issued the corrective action, Bantam zoning on that facility would have lapsed.

[00:05:07] Speaker 04:
So it was

[00:05:09] Speaker 01:
But that facility was going to be knocked out of play anyhow because school children were moving in the neighborhood and it would be improper to have released inmates in a facility near the children.

[00:05:24] Speaker 04:
Right.

[00:05:25] Speaker 04:
And at that time, Bannon was not aware of that.

[00:05:28] Speaker 01:
Right.

[00:05:29] Speaker 01:
But as a matter of looking at the circumstances, I would have thought that the original facility is history the minute that the school moves in.

[00:05:38] Speaker 01:
You clearly are not going to be able to get the government to agree to put a halfway house next to a school.

[00:05:45] Speaker 04:
Which, Your Honor, that is essentially what happened here because the issue was due to the passage of time.

[00:05:53] Speaker 04:
It could no longer use that original facility.

[00:05:56] Speaker 06:
But you want to obtain this contract, right?

[00:06:02] Speaker 06:
Yes, Your Honor.

[00:06:03] Speaker 06:
And the obligation

[00:06:07] Speaker 06:
one obligation for you to obtain this contract is to have proper zoning, right?

[00:06:12] Speaker 06:
Yes, sir.

[00:06:13] Speaker 06:
And you had an obligation to obtain proper zoning, did you not?

[00:06:17] Speaker 06:
Yes, sir.

[00:06:20] Speaker 06:
Why did you delay in applying to the proper zoning board for the variance?

[00:06:28] Speaker 06:
Why didn't you do it as soon as it reopened?

[00:06:35] Speaker 04:
Well, Banham

[00:06:36] Speaker 04:
was in the process of doing so, which is what they had requested the extension in order to do.

[00:06:46] Speaker 04:
And they had found a new facility and entered into an agreement, a right to use agreement.

[00:06:54] Speaker 00:
But because the BOP only gave Bandom an extension of two weeks, it was- Well, when you talk about they only gave them an extension of two weeks, but isn't it true that Bandom didn't seek any

[00:07:06] Speaker 00:
type of extension or a move until two full months after the corrective action was taken?

[00:07:14] Speaker 00:
Yes, Your Honor, but that's... So you wait two months and you do nothing.

[00:07:17] Speaker 00:
Now you know during that two months, even if you didn't know a school moved in, you know your zoning expired on December 1st of 2013.

[00:07:25] Speaker 00:
You know that because that was clear on the face of your zoning.

[00:07:29] Speaker 00:
So corrective action comes.

[00:07:31] Speaker 00:
You know you're sitting on expired zoning approval.

[00:07:35] Speaker 00:
At that point, you knew in order to be able to compete for this contract, you had to get re-approved.

[00:07:43] Speaker 00:
So even if you didn't know there was a school there and you wouldn't therefore be approved, why is it okay for you to sit back and do nothing for two months after the corrective action and now be heard to complain about the fact when you finally did something two months later, you asked for an extension and they only gave you two weeks and that's not fair because it's not long enough.

[00:08:03] Speaker 04:
Well, Your Honor, it wasn't that Banham did nothing.

[00:08:07] Speaker 04:
They were in the process of negotiating other agreements.

[00:08:11] Speaker 04:
They were attempting to make arrangements with other individuals at that time.

[00:08:17] Speaker 04:
I understand that's not part of the paper record.

[00:08:22] Speaker 05:
However, how is it relevant to the zoning requirements?

[00:08:36] Speaker 04:
Well, Your Honor, I believe Bannon was simply attempting to comply with the BOP requirements.

[00:08:43] Speaker 04:
And even if Bannon had been able to, the BOP was looking to shut Bannon down regardless because using a clause that they could not change their facility after X number of days.

[00:09:03] Speaker 04:
So Bannon was in a situation where essentially they were damned if they do, damned if they don't.

[00:09:10] Speaker 04:
Where if they had established zoning, they were going to be knocked out for untimely.

[00:09:17] Speaker 06:
That's purely speculative on your part, isn't it?

[00:09:21] Speaker 04:
No, Your Honor, that's right in the record with letters from the BOP telling Bannon that, advising Bannon that

[00:09:31] Speaker 04:
any change to their proposed facility would be untitled.

[00:09:41] Speaker 01:
On the zoning issue, my recollection of the proceedings below was that you had a disparate treatment argument, which I don't believe you've made here.

[00:09:50] Speaker 01:
I thought your argument below was that the agency, your competitor here is a business

[00:09:58] Speaker 01:
a unit that has a pre-existing facility that's performing the services.

[00:10:03] Speaker 01:
And it had a previously approved zoning apparently, or it had some type, and I thought your argument below was that the government was cutting slack to your competitor on the zoning issue, but not you, and therefore there was disparate, unfair, disparate treatment.

[00:10:19] Speaker 01:
But I didn't see that argument in your brief here.

[00:10:21] Speaker 04:
Well, Your Honor, that essentially some of the issues

[00:10:28] Speaker 04:
below may have gotten slightly conflated because essentially Bantam's recitation of the previous procurement was essentially simply to show how the passage of time during the first procurement and challenge of that procurement prejudiced Bantam because of the passage of time and the zoning issue.

[00:10:56] Speaker 00:
Mr. Hoffman, your difficulty is the standard of review.

[00:11:02] Speaker 00:
I mean, I didn't mean by my questions to suggest that Bannon had done something wrong.

[00:11:07] Speaker 00:
But the problem is, under an abuse of discretion standard, it's hard for me to conclude that when they had two months to act, and they didn't move it or seek corrective action during that two month, or seek an extension after that, during that two month period,

[00:11:27] Speaker 00:
How can I say it's an abuse of discretion for the lower tribunal to decide that two weeks was enough and then to boot him out of the process after that?

[00:11:37] Speaker 00:
Your problem is abuse of discretion.

[00:11:39] Speaker 00:
We don't get de novo review over that question.

[00:11:43] Speaker 00:
You sat and didn't act for two months, then they only gave you two weeks.

[00:11:47] Speaker 00:
If they had only given you two weeks the day they issued the corrective action, this would be a really different case.

[00:11:52] Speaker 00:
even under an abuse of discretion standard.

[00:11:54] Speaker 00:
But under an abuse of discretion standard, your hurdle is that Bandom didn't do anything for two months and then wanted to complain about only being given two weeks to fix things.

[00:12:07] Speaker 00:
You see the problem I'm having.

[00:12:10] Speaker 04:
I believe so, Your Honor.

[00:12:12] Speaker 04:
The issue there is that

[00:12:23] Speaker 04:
the BOP's course of conduct throughout this procurement and, quite frankly, relating to other procurements as well involving very, very similar issues.

[00:12:38] Speaker 00:
Not to get too deep into those issues, but there have been two procurements very recently in which... None of that is relevant to this record, but let me make sure I understand your argument because you're into your rebuttal time and I want to make sure you have a chance.

[00:12:52] Speaker 00:
that this record as a whole shows or demonstrates unfair treatment of phantom in this process.

[00:12:58] Speaker 00:
Even if they waited two months and maybe weren't as quick as they could have been, that the overall record shows that your argument is that they were unfairly treated.

[00:13:09] Speaker 04:
In essence, yes, Your Honor.

[00:13:10] Speaker 00:
Okay.

[00:13:11] Speaker 00:
Thank you.

[00:13:11] Speaker 00:
Let's hear from closing counsel.

[00:13:14] Speaker 00:
Mr. Werner, who's going first?

[00:13:17] Speaker 02:
Mr. Majeris.

[00:13:18] Speaker 00:
Okay.

[00:13:18] Speaker 02:
Mr. Majeris.

[00:13:19] Speaker 02:
Thank you.

[00:13:20] Speaker 00:
I believe, yeah, you have 11 minutes.

[00:13:23] Speaker 03:
Yes.

[00:13:24] Speaker 03:
Okay.

[00:13:30] Speaker 03:
May I please the court?

[00:13:31] Speaker 03:
My name is Ryan Majeris and I represent the United States in this matter.

[00:13:35] Speaker 03:
This case is about timeliness and we ask that this court affirm the trial court's judgment that the agency was reasonable in excluding them from the competitive range because of untimely zoning.

[00:13:45] Speaker 03:
What's critical in this case is the fact that they were late and that the requirements and the solicitation permit the agency to eliminate them from the competitive range.

[00:13:53] Speaker 00:
Well, when you say they were late, you mean between, you're talking about between the May 28th and June 11th dates?

[00:13:59] Speaker 00:
Is that the lateness?

[00:14:00] Speaker 00:
Because I thought that was sort of forgiven by the government.

[00:14:03] Speaker 00:
I didn't really think that you were here today arguing to me that that lateness justified kicking them out at this time.

[00:14:09] Speaker 03:
Correct, Your Honor.

[00:14:10] Speaker 00:
That's not relevant to, okay, then why don't you get to whatever it is you think

[00:14:14] Speaker 00:
warranted kicking them out this time, because it seems like the government already relinquished the other problems that Bannon may have had.

[00:14:22] Speaker 03:
Yes, Your Honor, and the court found that those issues were removed.

[00:14:24] Speaker 03:
So following the initial protest and the agency's decision to take corrective action, and I note that Bannon voluntarily agreed to that corrective action and agreed to dismiss their suit, pursuant to that corrective action, what happened is that the agency allowed, reconsidered Bannon's proposal submitted in June of 2013

[00:14:43] Speaker 03:
along with its proof of zoning.

[00:14:45] Speaker 03:
As Your Honors pointed out, that zoning expired in December, the beginning of December 2013.

[00:14:50] Speaker 03:
They were left acting with the competition about a month and a half later, January 22, 2014.

[00:14:57] Speaker 03:
So they knew their zoning had expired and they had continued to pursue their efforts to obtain the contract, yet did nothing to obtain proper zoning.

[00:15:06] Speaker 00:
Yeah, but is your complaint that they should have been acting between December 1, 2013 and January

[00:15:13] Speaker 00:
during that time, the government had already kicked him out.

[00:15:16] Speaker 00:
So why, and they were protesting that.

[00:15:19] Speaker 00:
And so the record as established by the time of the protest would be the record upon which the government's proper action or improper action would be judged.

[00:15:28] Speaker 00:
So are you really faulting them for at a time when they've been kicked out of the contract, not during that time, seeking to

[00:15:37] Speaker 00:
renew zoning or extend, I don't know what the right terminology is.

[00:15:40] Speaker 00:
Yes, Your Honor.

[00:15:41] Speaker 00:
Is that really your argument that during that small window between December 1st and January, whatever, they should have acted?

[00:15:48] Speaker 00:
Is that your argument?

[00:15:49] Speaker 03:
Yes, Your Honor.

[00:15:49] Speaker 03:
That is our position.

[00:15:50] Speaker 03:
I don't think that's critical to get to where we would like this Court to go because, as Your Honor pointed out, they were let back into the competition in January 2014.

[00:15:58] Speaker 03:
They knew their zoning had expired and they did nothing.

[00:16:01] Speaker 03:
They didn't exhibit the necessary diligence.

[00:16:04] Speaker 03:
In fact, it was the agency that reached out to Banham about a month and a half later on March 11th saying, you know, we have your current zoning.

[00:16:11] Speaker 03:
We told you that's what we were going to consider.

[00:16:13] Speaker 03:
It's deficient.

[00:16:14] Speaker 03:
And then on March 14th, they issued discussion notices saying, you know, your zoning is deficient.

[00:16:20] Speaker 03:
Provide valid proof of your zoning.

[00:16:22] Speaker 03:
And not only that, that your zoning doesn't exhibit that you can cover all offenders, both violent and nonviolent.

[00:16:28] Speaker 00:
Is that because of the school or is that the nature of the zoning that they actually had that was effective up until December 1st?

[00:16:35] Speaker 03:
Well, so their initial proposal, which of course is not the issue because they, well, it was at the time because they still, that was the proposal.

[00:16:41] Speaker 00:
No, but I mean the zoning.

[00:16:42] Speaker 00:
I'm talking, the original zoning approval was for everything violent and nonviolent?

[00:16:46] Speaker 03:
No, their initial proposal was just to cover nonviolent and that was a problem.

[00:16:51] Speaker 03:
And so after the agency issued the discussion notice in the middle of March, they gave them two weeks to respond.

[00:16:57] Speaker 03:
Banned them then at that point, this was March 26, so over two months after they had let them back into the competition and informed them of such, they requested an extension and requested additional time to, and I quote, negotiate a new lease or purchase a new property, affirm the zoning for the property, apply for a special exception, create new floor plans, performance layout, 120-day availability in site plans.

[00:17:20] Speaker 03:
And they also noted that they were negotiating for a new site location with seven different potential properties.

[00:17:26] Speaker 03:
So they didn't inform the agency that they were... But they requested an extension at that time.

[00:17:32] Speaker 01:
They had, yes.

[00:17:33] Speaker 01:
And what was the answer to the request?

[00:17:35] Speaker 03:
So this was the first notice that the agency had received that they were requesting a site change because their current zoning could not be used.

[00:17:44] Speaker 03:
And they note this in their response letter to BANM.

[00:17:47] Speaker 03:
The solicitation clearly states, if you're going to do a site change, you have to do it within 60 days of your initial proposal.

[00:17:52] Speaker 03:
They're obviously long past that date.

[00:17:54] Speaker 03:
They're even passed if you were to consider January 22nd, the day they were let back in.

[00:17:58] Speaker 01:
Which is probably what the reasonable thing to assume.

[00:18:01] Speaker 01:
Sure.

[00:18:02] Speaker 03:
And they're still late.

[00:18:03] Speaker 03:
They're still two days late.

[00:18:03] Speaker 01:
That's what I mean.

[00:18:04] Speaker 03:
And really that's the reason we noted the initial timeline, because this just exhibits a lack of diligence, not only in the piece of this case that was mooted with the corrective action, but following.

[00:18:15] Speaker 01:
Was an extension granted?

[00:18:17] Speaker 03:
An extension was granted, but the problem is that they were not... How long?

[00:18:21] Speaker 03:
For two weeks, they were suspended.

[00:18:22] Speaker 01:
For two weeks.

[00:18:23] Speaker 01:
But the problem is that... That's pretty much an illusory extension.

[00:18:27] Speaker 01:
Right.

[00:18:28] Speaker 01:
They're going to go find a new property.

[00:18:31] Speaker 01:
First they've got to go find one, right?

[00:18:34] Speaker 01:
That may take more than an hour.

[00:18:36] Speaker 01:
Then they've got to get zoning for it if they want to have it in play.

[00:18:40] Speaker 03:
Yes.

[00:18:41] Speaker 01:
Right?

[00:18:42] Speaker 03:
Absolutely.

[00:18:43] Speaker 05:
And why I emphasize the language in banning... Is your absolutely agreeing with Judge Clevenger that it was illusory or absolutely that it was

[00:18:51] Speaker 05:
the situation.

[00:18:52] Speaker 03:
It's not that it was a loser, it's that what they were asking to do would take months and the agency has the discretion under the solicitation to find you're proposing a site change.

[00:19:01] Speaker 03:
The solicitation clearly states that it will be considered.

[00:19:04] Speaker 01:
This is what you're saying that the agency looks back and sees the horizon here and they say this ban character can't get his act together.

[00:19:16] Speaker 01:
He couldn't get his act together in act one of the play

[00:19:20] Speaker 01:
We gave him Act 2.

[00:19:22] Speaker 01:
He can't get his act together in Act 2.

[00:19:25] Speaker 01:
And so we are going to use our discretion to give him a very short time period, which probably means he can't possibly satisfy it.

[00:19:33] Speaker 01:
And thereby, we will be able to move on and eliminate him from the competitive rank.

[00:19:40] Speaker 01:
If a reasonable person is looking at the facts in that way, what's wrong with that view of the circumstance?

[00:19:46] Speaker 03:
Well, I think the critical point is that the solicitation says that if you're seeking a site change, that's an unsolicited proposal modification and may result in elimination.

[00:19:56] Speaker 03:
And the solicitation gives the agency discretion to eliminate from the competitive range if you're proposing a site change.

[00:20:03] Speaker 01:
I should add, in fairness to you, that part of what I should have said in the story also is that the government has an interest in resolving this housing issue promptly.

[00:20:13] Speaker 01:
Absolutely, yes.

[00:20:14] Speaker 01:
They have in hand a facility that they've used before and are familiar with and so long as the price is reasonable.

[00:20:21] Speaker 01:
And they can't wait forever.

[00:20:23] Speaker 03:
Exactly, exactly.

[00:20:24] Speaker 00:
Isn't it reasonable to infer that that's precisely why the government left itself with the discretion if you propose a site change to eliminate you because

[00:20:32] Speaker 00:
You don't want to wait for all new zoning approval and everything else.

[00:20:35] Speaker 03:
Yes, Your Honor.

[00:20:36] Speaker 03:
And I emphasize the point about all the pieces that they would have to do to get their zoning in place with some new property, because that could take a very long period of time.

[00:20:44] Speaker 03:
The agency doesn't have to entertain that and doesn't have to agree to do that.

[00:20:49] Speaker 00:
But this would be a very different case, potentially, wouldn't it?

[00:20:51] Speaker 00:
If in January, when the corrective action occurred, suddenly Bannum said, OK, well, our zoning expired December 30th.

[00:21:01] Speaker 00:
first, it's going to take us 30 days to get an answer for reapplication, and the government said, we'll give you two weeks.

[00:21:07] Speaker 00:
Wouldn't that feel like maybe an abuse of discretion?

[00:21:11] Speaker 03:
That potentially would be a different case.

[00:21:13] Speaker 00:
But that's not this case.

[00:21:14] Speaker 03:
That's not this case.

[00:21:15] Speaker 03:
And I know that this case, of course, is not in the record before the court, but opposing counsel referenced the other proceedings before this.

[00:21:21] Speaker 00:
No, we don't.

[00:21:22] Speaker 03:
OK, I won't speak.

[00:21:24] Speaker 00:
Anything further you feel like you need to add?

[00:21:26] Speaker 03:
Um, no, your honor.

[00:21:28] Speaker 00:
Why don't we let Mr. Majeris, oh no, your Majeris, Mr. Werner.

[00:21:31] Speaker 00:
You've got your name flipped on my thing.

[00:21:33] Speaker 00:
Thank you very much.

[00:21:33] Speaker 00:
Mr. Werner has his time.

[00:21:38] Speaker 00:
And so if you really get desperate need extra, Mr. Majeris conceded a little of his, so you can go a little bit over.

[00:21:43] Speaker 02:
I hope I won't even use the four minutes, your honor.

[00:21:45] Speaker 02:
I'll try not to belabor anything.

[00:21:46] Speaker 02:
May it please the court, I'm Jim Werner.

[00:21:48] Speaker 02:
I represent the intervener, Austin Wilkes.

[00:21:50] Speaker 02:
What I really want to do is just to make certain, and I

[00:21:53] Speaker 02:
Maybe they all got answered as we went along, but Judge Wallach, you asked the question, the very first question of the argument, and the answer is the record does not reveal that Bannum ever provided proof that they had zoning where they could accept all of the offenders required by the solicitation.

[00:22:14] Speaker 02:
Judge Clevinder, you asked the question about the way this transpired sort of in its totality,

[00:22:22] Speaker 02:
Importantly, and I think Judge Moore, this went to one of your points, this was not just a question.

[00:22:27] Speaker 00:
Well, you're going to cover all of it.

[00:22:28] Speaker 02:
Yeah, I'm trying.

[00:22:29] Speaker 00:
So I don't belabor it, but I answer questions.

[00:22:31] Speaker 00:
You look really good in black, and my hair is black.

[00:22:33] Speaker 00:
Well, go ahead.

[00:22:34] Speaker 01:
Keep going.

[00:22:35] Speaker 01:
You also referenced while you were doing the totality and certifications why it is your client never showed proof of zoning.

[00:22:42] Speaker 02:
My client did show proof of zoning.

[00:22:43] Speaker 01:
Proof of zoning?

[00:22:44] Speaker 01:
Absolutely.

[00:22:45] Speaker 01:
That piece of paper that was in the record, that didn't say you had zoning.

[00:22:49] Speaker 02:
Well, I think it's an occupancy.

[00:22:52] Speaker 01:
I'm supposed to presume that because you have occupancy, the city hasn't thrown you out with zoning violations?

[00:22:58] Speaker 02:
I think given that they were an operating facility and the BOP knew that and understood that they were the operating facility in that location, yes, that would be reasonable.

[00:23:08] Speaker 01:
If not, could you have a certificate of occupancy?

[00:23:11] Speaker 01:
Let's assume they're running a drug business in there.

[00:23:15] Speaker 01:
I mean, the fact that you're occupying a facility is irrelevant to it or not.

[00:23:19] Speaker 01:
You're satisfying all the requirements of zoning.

[00:23:22] Speaker 01:
Whatever.

[00:23:23] Speaker 01:
Right?

[00:23:24] Speaker 02:
I don't think that would be true because they were operating an existing RRC.

[00:23:30] Speaker 01:
When the request for them to update their zoning, they never came in and said, we have this thing from the BZA, the Board of Zoning Approval, that says we have a piece of paper that shows we're zoning approved.

[00:23:41] Speaker 01:
That piece of paper I didn't see in the record.

[00:23:43] Speaker 02:
They produced a new letter, and I don't have the exact site in my mind.

[00:23:48] Speaker 01:
in response to the discussion notice.

[00:23:54] Speaker 02:
The second letter, the one that they provided in response to the discussion notice, made specific reference to the fact that they were authorized to continue operation of the halfway house at that location, as I recall.

[00:24:08] Speaker 01:
And that would include zoning as well as other requirements?

[00:24:12] Speaker 01:
I believe so.

[00:24:14] Speaker 01:
I certainly believe that was a reasonable conclusion.

[00:24:16] Speaker 01:
It was less than perfect

[00:24:19] Speaker 01:
you know, certificate, zoning certificate by way of proof.

[00:24:24] Speaker 02:
I suppose you could say that about a number of the things, Your Honor.

[00:24:27] Speaker 02:
And I guess back to the point, what you also could conclude is that in this case, the requirement of the solicitation was for these offerors not just to provide a proof of zoning, but to maintain it, including through the life of the contract.

[00:24:41] Speaker 02:
And I think that's to the point that you were describing earlier that when you look at this,

[00:24:48] Speaker 02:
you realize that Banham, who felt offended by the treatment they received in the initial response, began a protest in the summer.

[00:24:59] Speaker 02:
Took it first to the agency, took it to the GAO, didn't even file its protest to the Court of Claims until such time as it knew that its special exception had expired.

[00:25:15] Speaker 02:
It accepted

[00:25:16] Speaker 02:
with the voluntary dismissal of that initial protest, the corrective action, and... It was being tenacious in pursuing its legal remedies.

[00:25:27] Speaker 02:
And it should have been equally tenacious in maintaining its qualification under the solicitation.

[00:25:32] Speaker 02:
And it did not.

[00:25:32] Speaker 02:
It did nothing to do that.

[00:25:34] Speaker 02:
Including, as Mr. Majeris pointed out, for well beyond 60 days after the clock had been reset.

[00:25:40] Speaker 02:
And so I think the facts are here that

[00:25:45] Speaker 02:
the only prejudice that Bantam suffered in respect to this process.

[00:25:49] Speaker 01:
You would agree, would you not, that a two-week extension in a circumstance where they don't even have a property to get zoning on is, I use the word illusory, I would say it's parsimonious.

[00:26:04] Speaker 02:
Well, first of all, all they requested was an extension to respond to the discussion notice.

[00:26:08] Speaker 02:
They never really requested an extension with respect to a new submittal.

[00:26:14] Speaker 02:
They requested and were granted a two week extension to respond to the discussion notice, the discussion notice, which had said to them, we noticed that your proof of zoning, late as it was originally, says that you cannot accept violent offenders and you must have begun your use on December the 1st.

[00:26:34] Speaker 02:
In response to that, they said, we're going to have to do all of this stuff, but they never requested an extension to do that.

[00:26:41] Speaker 02:
They were granted a two week extension.

[00:26:43] Speaker 02:
to respond to the discussion notes, which is what they requested.

[00:26:48] Speaker 02:
And so, again, I've taken longer than I expected, but I believe that when you look at the circumstances here, you must conclude there was no disparate treatment.

[00:27:00] Speaker 02:
There were disparate proposals, but there is nothing here that indicates that there was any abuse of discretion and certainly no violation of the terms of the solicitation or any of the regulations by the government.

[00:27:12] Speaker 02:
Thank you, Your Honor.

[00:27:13] Speaker 00:
Thank you, Mr. Werner.

[00:27:14] Speaker 00:
Mr. Huffman, you have some rebuttal time.

[00:27:21] Speaker 04:
Judge Clevenger, I may have misconstrued your question earlier about disparate treatment.

[00:27:30] Speaker 04:
I would like to point to pages 14 and 15 of our brief where we did address that issue where the BOP asked the Assaults and

[00:27:41] Speaker 04:
two months after it had already thrown Bantam out of the competitive range for current zoning documentation.

[00:27:50] Speaker 04:
And we believe that that shows disparate treatment right there.

[00:27:54] Speaker 04:
And I would like to point out that, again, Mr. Majeris acknowledged that a two-week extension was illusory.

[00:28:02] Speaker 04:
The BOP knew that it was completely impossible.

[00:28:05] Speaker 04:
We didn't.

[00:28:09] Speaker 06:
I asked him that question and he denied it.

[00:28:13] Speaker 04:
I believe that in such a circumstance, in order to obtain a new facility, apply for zoning and get zoning in a span of two weeks, it's simply impossible.

[00:28:30] Speaker 06:
Whether the BOP acknowledges that it knew that- Could you ask, was the two weeks to obtain zoning or was it to respond as your opposing council said?

[00:28:42] Speaker 04:
I believe it was

[00:28:43] Speaker 06:
Well, tell me what you know, so tell me.

[00:28:46] Speaker 04:
It was to address the issues in the discussion notice, which would include addressing the zoning issue and the property issue.

[00:28:59] Speaker 01:
The short is that your response, if it had been filed within two weeks, would have explained why two weeks wasn't enough time to get a new facility and get zoned.

[00:29:06] Speaker 04:
Which is exactly what Banham ended up doing, which

[00:29:11] Speaker 04:
I believe that's at 1134 of the Joint Appendix, or 11334 in the Joint Appendix.

[00:29:22] Speaker 04:
Bantam advised that it had obtained a new facility and that it had already scheduled a zoning hearing, but at that time the BOP eliminated Bantam from the competitive range, so there was no reason for Bantam to go forward at that time.

[00:29:39] Speaker 04:
I believe I'm out of time.

[00:29:40] Speaker 00:
Thank you.

[00:29:40] Speaker 00:
Thank you, Mr. Hoffman.

[00:29:41] Speaker 00:
We thank both counsel for their argument.

[00:29:43] Speaker 00:
The case is submitted.