[00:00:00] Speaker 01:
In 5 0 3 7 Bannum Inc.

[00:00:02] Speaker 01:
versus US.

[00:00:08] Speaker 01:
Give everybody a chance to settle.

[00:00:43] Speaker 04:
May I please the court?

[00:00:47] Speaker 04:
The court should grant BAM's appeal here based upon three issues.

[00:00:52] Speaker 04:
First, the BOP abused its discretion in keeping Alston Wilkes within the competitive range when it failed to timely establish its proof of zoning.

[00:01:04] Speaker 04:
Now, the solicitation clause here did make this initially a matter of discretion to the contracting officer.

[00:01:12] Speaker 04:
Bannon believes here that there was an abuse of that discretion based upon disparate treatment.

[00:01:18] Speaker 04:
In an eerily similar situation that happened right around this same time in a procurement regarding another facility, the BOP eliminated Bannon from the competitive range

[00:01:33] Speaker 04:
for virtually identical failure to timely submit proof of zoning, despite the fact that the BOP even had that proof of zoning in its hands.

[00:01:42] Speaker 01:
How are we supposed to consider what they did in another case as interfering with it?

[00:01:47] Speaker 01:
The question, I think, why is the question not?

[00:01:49] Speaker 01:
Did they have the discretion here to make a decision with respect to zoning or not zoning and what was required?

[00:01:58] Speaker 01:
And if they've got the ability, they've got the discretion inherent in the statute of the regulations to do that, then what relevance is it that they did it and what they did in another case?

[00:02:12] Speaker 01:
I mean, maybe what they did in the other case is subject to challenge.

[00:02:14] Speaker 01:
How do we know?

[00:02:15] Speaker 01:
But we can only look, I think, at the facts in this case, right?

[00:02:19] Speaker 04:
Well, Your Honor, what Bantam has attempted to establish is disparate treatment.

[00:02:25] Speaker 04:
And that other procurement has already been litigated and has already been before this court.

[00:02:32] Speaker 04:
And essentially what Bantam is attempting to show is that we had two very similar situations in which offerors failed to timely submit zoning documentation, and in both

[00:02:48] Speaker 04:
both situations, the BOP took two completely opposite results, both of which- The facts were different.

[00:02:56] Speaker 00:
The facts were sufficiently different.

[00:02:58] Speaker 00:
It would be helpful to understand where the abuse of discretion took place in this case.

[00:03:05] Speaker 04:
I apologize.

[00:03:05] Speaker 04:
Can you repeat that, Your Honor?

[00:03:07] Speaker 00:
Well, when you were saying that because a failure to comply in a certain way led to a discretionary exclusion,

[00:03:18] Speaker 00:
that this case should be decided the same way, but they weren't completely identical.

[00:03:23] Speaker 00:
And appreciating the value of precedent for all contractors, why was there an abuse of discretion in this case?

[00:03:35] Speaker 04:
We believe that it was a very virtually identical solicitation.

[00:03:43] Speaker 04:
I believe the clause referenced was

[00:03:47] Speaker 04:
exactly the same or substantially the same and in both cases where an offer where an offer failed to timely submit zoning documentation in the previous case that was already decided the court found that Bannum was properly eliminated from the competitive range

[00:04:09] Speaker 01:
and then here i do have any any precedent in which we've taken when there's discretion to be had on the facts before us where we've used other cases with different parties under a different contract to say there's an abuse of discretion because they exercise their discretion in one way in this other case and in this way here i don't know

[00:04:36] Speaker 01:
I can't recall seeing a case in which we've done that.

[00:04:39] Speaker 01:
I think it would be particularly hard because what if we scoured the earth and figured out that there were 14 cases and in half of them they exercised their discretion to allow it and in the other half didn't.

[00:04:51] Speaker 01:
Does that establish that they have abused their discretion in every one of those cases?

[00:04:56] Speaker 04:
Well, Your Honor, I don't believe so because here we're talking about one agency's actions with respect to one specific offer.

[00:05:05] Speaker 04:
Because in both of these situations, the BOP took divergent paths, both of which essentially resulted in Bannum losing contracts.

[00:05:18] Speaker 01:
Well, can we move on then to the... I assume you have other arguments about the... Yes, Your Honor.

[00:05:25] Speaker 04:
The second issue is when the BOP sought is that

[00:05:29] Speaker 04:
It spans position that Alston Wilkes made a material misrepresentation to the BOP during the procurement process.

[00:05:40] Speaker 04:
When the BOP sought clarification regarding Alston's special use permit, that it ultimately did finally receive well after the deadline, Alston made material misrepresentations to the BOP.

[00:05:56] Speaker 04:
This clarification was needed because

[00:06:00] Speaker 01:
in the in also walks zoning applications submitted to the city it indicated to the city council that would only be how accepting nonviolent offenders yeah but then it went back and the working with the contracting officer went back and it got the guy who had made the initial okay to say all right now you're giving me full information and we're still okay to go why is that not sufficient

[00:06:30] Speaker 04:
well your explanation is exactly where where we have to put where the problem was because the also will did not go back to the city council who was responsible for granting the special use permit instead they went to a zoning official who was not part of the city council and not part of the

[00:06:57] Speaker 04:
party who was responsible for issuing awarding specials.

[00:07:03] Speaker 06:
Submit the email exchange between itself and Craig Monroe, the zoning official to the DOP contracting officer.

[00:07:14] Speaker 04:
I believe it was Craig Harmon.

[00:07:16] Speaker 06:
Craig Harmon, yeah.

[00:07:17] Speaker 04:
But yes, I believe this, if I recall correctly, I believe they did.

[00:07:22] Speaker 06:
Okay, so the BOP contracting officer had an opportunity to see what the evidence was that Austin Wilkes had to substantiate that it had gotten the clearance from the city that its permit would still be intact.

[00:07:41] Speaker 04:
Well, Your Honor, I don't believe that

[00:07:44] Speaker 04:
I don't believe that also looks revealed to the BOP contracting officer that that was not the, that Mr. Harmon was not the individual who or even part of the city council who had the authority to even issue the special use permit.

[00:07:58] Speaker 01:
How do we, I mean, isn't he the guy that signed the initial letter who originally signed it and said that they can grant him the special use permit?

[00:08:10] Speaker 04:
Yes, your honor.

[00:08:10] Speaker 01:
However, that I mean if we're relying on that letter in the first instance, and he's the guy that signed it, why wouldn't his then saying, okay, I'm essentially amending the letter and I'm going to let you, I'm going to say it's okay for you to do what you're doing.

[00:08:25] Speaker 04:
Well, your honor was simply based off.

[00:08:28] Speaker 04:
Mr. Harmon was able to sign that special use permit based upon the vote of the city council and quite simply, we believe that

[00:08:38] Speaker 04:
it was under the impression that believes that that special use permit the vote approving that by the city council was obtained through false pretenses essentially based on the representations that they were not going to be housing violent offenders.

[00:08:56] Speaker 06:
I guess if the BOP CEO was unsatisfied with Craig Monroe's email, the CEO could have asked for further follow-up from Alston Wilkes, right?

[00:09:10] Speaker 04:
Perhaps, but at the end of the day, it was the City Council who was to vote on that.

[00:09:18] Speaker 04:
and we believe that once again the City Council did not have all the information.

[00:09:24] Speaker 01:
Is it in the record what the rules are for getting these special permits?

[00:09:27] Speaker 01:
Is there any delegation done to Mr. Harmon so that maybe he was delegated that authority?

[00:09:33] Speaker 01:
I mean it's not some random guy.

[00:09:35] Speaker 01:
It's the guy that signed on behalf of the City Council in the first instance allowing them to do that who is now coming back and said you can do the second thing.

[00:09:44] Speaker 01:
I don't think it's beyond the pale to assume and to accept that this is the guy who has the authority to make these determinations on behalf of the council.

[00:09:52] Speaker 01:
Right.

[00:09:53] Speaker 04:
Well, Your Honor, part of the record does contain the city ordinance explaining the process for obtaining a special use permit.

[00:10:07] Speaker 04:
And it does specifically say that the city council is to vote on that.

[00:10:13] Speaker 01:
So who are you alleging, I mean, I don't want to use the word fraud, that's too strong, but you're alleging some sort of bad act here, right?

[00:10:22] Speaker 01:
Correct, Your Honor.

[00:10:23] Speaker 01:
Who are you accusing of having committed the bad act?

[00:10:27] Speaker 04:
Ulster Wilkes, towards the BOP, when it held out Mr. Harmon is having authority that essentially is holding out

[00:10:38] Speaker 04:
that authority that he did not have because he did not have.

[00:10:41] Speaker 01:
Well, he held himself out as having that authority.

[00:10:44] Speaker 01:
So you're saying that Austin Wilkes should have gone beyond what the official, in this official capacity, was telling him the nature of his authority was?

[00:10:59] Speaker 04:
You know, I believe the special use permit or

[00:11:08] Speaker 04:
sorry to correct myself, I believe the documentation from the BOP requested that also will provide documentation indicating that the City Council was aware of the requirements when it made its vote in determination, which did not happen.

[00:11:30] Speaker 01:
So is the theory that the

[00:11:33] Speaker 01:
government abused its discretion by accepting this letter as signifying that the City Council had approved it?

[00:11:43] Speaker 01:
Is that the theory?

[00:11:45] Speaker 04:
Well that plus the fact that we don't, Bannon believes that also Wilkes made a material misrepresentation by providing that documentation from Mr. Harmon and not from somebody on the City Council.

[00:11:59] Speaker 00:
Well to try and understand

[00:12:01] Speaker 00:
what the issues really are and pursuing this line of inquiry.

[00:12:07] Speaker 00:
Are you alleging that there was some sort of incompetence or bad action on the part of the city council or that there was some sort of favoritism or casual decision or whatever one might look for on the part of the contracting officer?

[00:12:25] Speaker 04:
Not on the city council, your honor, and also not on the

[00:12:30] Speaker 04:
part of the contracting officer, because I don't believe the contracting officer would have necessarily known that Mr. Harmon was not on the city council and did not have, was not one of the persons who were voting on that special use permit.

[00:12:46] Speaker 00:
But then doesn't that take us back to the initial issue of how much discretion there is in some of these more complex issues that arise in zoning on the one hand,

[00:13:00] Speaker 00:
choice of contractor on another hand?

[00:13:04] Speaker 04:
I don't believe so, Your Honor, because the contracting officer had made that request for clarification from Alston Wilkes, and Alston Wilkes did not provide proper clarification.

[00:13:19] Speaker 04:
Instead of providing clarification from the City Council, they got it from... Eventually it was provided, was it not?

[00:13:29] Speaker 04:
not from anyone within the city council.

[00:13:32] Speaker 06:
Your time is running out.

[00:13:33] Speaker 06:
Can you quickly talk about the expiration of the permit?

[00:13:38] Speaker 06:
That was a little confusing.

[00:13:39] Speaker 06:
Can you just quickly sum up what the argument is?

[00:13:41] Speaker 04:
That's a fairly basic issue, Your Honor.

[00:13:44] Speaker 04:
Essentially, the zoning statute stated that if you don't either get a building permit or if you discontinue the development and don't continue it within a year,

[00:13:58] Speaker 04:
it expires on its own accord.

[00:14:02] Speaker 04:
And we believe that that simply didn't, while Austin Wilkes did obtain a zoning permit, a special use permit, well over a year had passed and no, they didn't get any extension.

[00:14:16] Speaker 04:
They didn't get any, they didn't ask for any extension.

[00:14:20] Speaker 04:
They didn't, obviously didn't continue development at that point because no contract had been awarded.

[00:14:27] Speaker 04:
And as such, we believe that it expired and what the contract or the solicitation required that proof of zoning be maintained throughout the life of the contract.

[00:14:39] Speaker 04:
And the BOP and also seemed to be making an argument that it's okay to have almost like a green light, red light, green light, red light type of situation with their zoning wanting to somehow be allowed to

[00:14:57] Speaker 04:
allow an offer to fall in and out of zoning throughout the course of the solicitation so long as it does not come, so long as they have it at the time the contract comes in.

[00:15:10] Speaker 04:
And we simply don't believe that that's the intent of that solicitation clause.

[00:15:35] Speaker 02:
Thank you.

[00:15:36] Speaker 02:
It may please the court.

[00:15:37] Speaker 02:
I'd like to begin by answering the question you asked, Judge Post, about whether other cases have addressed disparate treatment across different procurements.

[00:15:45] Speaker 02:
And there are no cases addressing that or finding disparate treatment.

[00:15:50] Speaker 02:
And that's probably for two reasons.

[00:15:53] Speaker 02:
First is because, as the court noted, that's the nature of discretion.

[00:15:57] Speaker 02:
One contracting officer in one case can decide to exclude an offer, while another one in another case

[00:16:03] Speaker 02:
can decide to include them.

[00:16:05] Speaker 02:
Moreover, when you try to do cross-procurement comparisons, it's difficult, if not impossible, to show that the offerors are similarly situated.

[00:16:15] Speaker 02:
For example, here, there's no evidence that in that other procurement in Columbia, South Carolina, that BANDM adequately kept the agency updated on its progress in obtaining its permitting.

[00:16:27] Speaker 02:
Moreover, that case involved an entirely different jurisdiction.

[00:16:31] Speaker 01:
I understand your point.

[00:16:32] Speaker 01:
Can I ask, Jeff, hypothetically, if we had two circumstances that we could assure ourselves were identical and you had one contracting officer doing one thing in the case and the exact opposite in another one, would that be a basis for arguing bad faith or something of that sort?

[00:16:50] Speaker 02:
I think when you're dealing with zoning requirements, it's difficult to imagine such a hypothetical because you have different jurisdictions with different zoning requirements.

[00:17:00] Speaker 02:
And so the contracting officers very well may have very different views about the likelihood that both offers will be able to ultimately obtain adequate zoning.

[00:17:12] Speaker 02:
If somehow you could show that the contracting officer viewed both offers as having the same likelihood of obtaining adequate permitting, then possibly yes.

[00:17:23] Speaker 02:
But I don't see how you could show that.

[00:17:25] Speaker 02:
And indeed here, the contracting officer reasonably determined in that case that Bannon was unlikely to obtain adequate zoning because the zoning it ultimately obtained limited the types of offenders.

[00:17:39] Speaker 01:
There's something odd about this case, isn't there?

[00:17:42] Speaker 01:
Isn't it a little striking that granted we accept that there's a lot of discretion left here based on the circumstances, but it seems there were a lot of glitches here and a lot of exceptions to what the norm is.

[00:17:54] Speaker 01:
and a lot of loosening of the standards that apply.

[00:17:59] Speaker 01:
Now, it may be that the statute permits discretion and the authority to go beyond that.

[00:18:06] Speaker 01:
There seems to be a lot of that going on here, right?

[00:18:09] Speaker 02:
I disagree, Your Honor.

[00:18:10] Speaker 02:
I think that the reason in the solicitation is explicit that when you're dealing with zoning, it gives extra discretion because

[00:18:18] Speaker 02:
the agency recognized that frequently there are delays in obtaining zoning.

[00:18:23] Speaker 02:
So the key that the agency was looking at is was it likely that they ultimately would be able to keep zoning or obtain the zoning.

[00:18:30] Speaker 02:
And here they kept, AWS kept the agency updated on its progress and so it was reasonably confident that it ultimately would obtain zoning.

[00:18:39] Speaker 02:
And it should be noted that in that Columbia procurement

[00:18:42] Speaker 02:
the contracting officer ultimately took corrective action and kept Bandom within the competitive range.

[00:18:47] Speaker 02:
So she did the same thing there, ultimately, as she did here.

[00:18:51] Speaker 02:
Bandom had a chance to compete, notwithstanding its late zoning didn't disqualify it.

[00:18:59] Speaker 02:
And the court of federal claims found that that was reasonable, and this court affirmed that.

[00:19:03] Speaker 02:
So actually, she ultimately, the contracting officers, did the same things in both cases.

[00:19:09] Speaker 02:
So I don't think that this was unusual at all.

[00:19:12] Speaker 01:
What about Mr. Harman?

[00:19:14] Speaker 02:
Turning to the misrepresentation case, there's no evidence before this court that Mr. Harman wasn't the appropriate official to respond to inquiries about the scope and basis of the special use permit.

[00:19:28] Speaker 01:
But is it not correct that it's the city council that has the only body that has the authority to make or not make these decisions, not a particular individual?

[00:19:37] Speaker 02:
No, that's incorrect.

[00:19:38] Speaker 02:
The city council has the authority to issue the special use permit.

[00:19:42] Speaker 02:
Once the special use permit is issued, Mr. Harmon could respond to questions about that.

[00:19:47] Speaker 02:
And it was the city manager, under the zoning ordinance section 30-8F1B, that had the authority to revoke the special use permit due to a misrepresentation.

[00:19:59] Speaker 02:
Moreover, the city manager had the authority to delegate that power.

[00:20:03] Speaker 02:
And it appears that he delegated that to Mr. Harmon, who was in the planning department, which was under his authority.

[00:20:09] Speaker 02:
given the fact that Mr. Harmon had presented the special use permit on behalf of the city manager and he had signed the special use permit on behalf of the city manager.

[00:20:18] Speaker 02:
So it doesn't follow from the fact that the city council voted to approve the special use permit that they had the power to revoke.

[00:20:29] Speaker 06:
Why did it take so long for the award to be decided on?

[00:20:34] Speaker 02:
Your Honor, there were numerous rounds of discussion.

[00:20:37] Speaker 02:
And a lot of that delay actually was due to the fact that Bannon repeatedly refused to accept that it had to accept all types of offenders.

[00:20:46] Speaker 02:
The agency had to go through five rounds of discussions because Bannon kept saying that it didn't have to accept all types of offenders.

[00:20:56] Speaker 02:
which ironically is not what it's accusing AWS of failing to do.

[00:21:00] Speaker 06:
So what about the expiration of the permit?

[00:21:03] Speaker 06:
The permit expired during the pendency of the bid process.

[00:21:08] Speaker 06:
And the point of extending, extending, extending the deadline to get the permit was because BOP obviously needed assurances that the awardee would have a proper zoning permit.

[00:21:24] Speaker 02:
That's incorrect.

[00:21:25] Speaker 02:
The permit did not expire during the evaluation process.

[00:21:30] Speaker 02:
The city has never indicated that it expired.

[00:21:34] Speaker 02:
And in fact, AWS has been performing for almost a year without any zoning problems.

[00:21:40] Speaker 02:
All we have is a speculative reading of the zoning ordinance, which is incorrect.

[00:21:45] Speaker 02:
If you read that ordinance 30-2C78, all it does is establish the deadline

[00:21:51] Speaker 02:
for obtaining a building permit for a development authorized by a special use permit.

[00:21:56] Speaker 02:
That does not apply here because the development authorized by AWS's special use permit didn't require a building permit.

[00:22:04] Speaker 06:
The only development that was authorized by... They did get a building permit though, didn't they?

[00:22:09] Speaker 02:
There's no evidence of that, no, Your Honor.

[00:22:12] Speaker 02:
They got a special use permit

[00:22:14] Speaker 05:
I don't believe there's any evidence of a building permit, Your Honor.

[00:22:24] Speaker 02:
And if there was, that one wasn't authorized by the special use permit.

[00:22:28] Speaker 02:
All the special use permit says is AWS, you can make a different use of an existing facility.

[00:22:34] Speaker 02:
It doesn't say you can build a new facility.

[00:22:37] Speaker 02:
So to make a different use of an existing facility, that doesn't authorize development that requires a building permit.

[00:22:44] Speaker 02:
because you don't need a building permit to make a different use of an existing building.

[00:22:48] Speaker 02:
Moreover, in their reply, Vanham now cites the second portion of that regulation, putting aside the issue that they waive that by not raising it below or in their opening brief, none of the predicates for that section are met here.

[00:23:05] Speaker 02:
There's no evidence in the record here that AWS ever started using the facility as a halfway house before

[00:23:12] Speaker 02:
that if it did, that it ever ceased using that.

[00:23:16] Speaker 02:
And if it did cease that use, that it ever discontinued that, that it didn't restart it within a year.

[00:23:22] Speaker 02:
So at this late date, they can't point to anything in the record supporting that.

[00:23:28] Speaker 02:
And it should be noted that even in the context of maintaining proof of zoning during the life of the contract, the solicitation in the contract gives the contracting officer discretion

[00:23:40] Speaker 02:
to excuse any such failure to maintain proof of zoning.

[00:23:45] Speaker 02:
So what we ultimately have here, Your Honor, is that the contracting officer was reasonably attempting to maintain competition to obtain the best value for the government by conducting discussions with both AWS and with BANUM to address the deficiencies in their proposals because she wanted to maintain competition.

[00:24:07] Speaker 02:
uh... and under this court's Bertrand Davis case, that's appropriate.

[00:24:11] Speaker 02:
If you're honest, I have no further questions.

[00:24:13] Speaker 02:
I respectfully request that this court from the decision of the Court of Federal Plans.

[00:24:16] Speaker 05:
Thank you.

[00:24:26] Speaker 03:
May it please the court for the intervener.

[00:24:29] Speaker 03:
Chris Close, let me respond to a question that you asked earlier.

[00:24:33] Speaker 03:
I think

[00:24:35] Speaker 03:
I guess I can say Judge Horn stole a comment I made during argument below about there being a strange dance and you sort of picked up on that.

[00:24:42] Speaker 03:
I think that the difference is there was no irregularity.

[00:24:46] Speaker 03:
There's no question here that the contracting officer had the authority, the discretion not to eliminate even if there was a late proof of zoning submission.

[00:24:57] Speaker 03:
There's no question that the contracting officer had the authority and had the discretion to issue an extension of the time.

[00:25:03] Speaker 03:
And there's no question that the contracting officer had the authority and the discretion to take it up as a part of discussion.

[00:25:09] Speaker 03:
They could have done any of those things.

[00:25:13] Speaker 03:
What was strange is that they issued an extension, but then said, but we're still not going to consider it.

[00:25:20] Speaker 03:
We're going to take it up in discussion.

[00:25:22] Speaker 03:
It was a strange dance.

[00:25:24] Speaker 03:
I agree.

[00:25:25] Speaker 03:
But none of it was irregular.

[00:25:26] Speaker 03:
None of it exceeded either the authority or the discretion that inherently existed.

[00:25:31] Speaker 03:
And in fact, at the end of the day,

[00:25:34] Speaker 03:
What you all are deciding is, did Judge Horn make any conclusions of law that are wrong as a matter of law?

[00:25:41] Speaker 03:
And did she find any facts that simply were clearly erroneous?

[00:25:47] Speaker 03:
And she didn't either.

[00:25:49] Speaker 03:
A comment was made, and I don't want to jump around, but I want to address a few of the things that you all raised.

[00:25:55] Speaker 03:
This question about a misrepresentation.

[00:25:58] Speaker 03:
I mean, there has to be, we're all familiar with the basic concept, there has to be a reliance, a reasonable reliance.

[00:26:03] Speaker 03:
BOP didn't get a misrepresentation and they didn't rely on any misrepresentation.

[00:26:08] Speaker 03:
What they're really trying to argue is that there was originally, in the original application, a misrepresentation to the city council.

[00:26:17] Speaker 03:
Well, that was a process which was open to the public.

[00:26:21] Speaker 03:
If Bannon believed there was something wrong at that level, they had the opportunity and the ability to have participated in that and addressed it.

[00:26:31] Speaker 00:
It doesn't go that far.

[00:26:33] Speaker 00:
They're saying there are rules.

[00:26:35] Speaker 00:
There are strict rules.

[00:26:36] Speaker 00:
People who deal with the government and who have deadlines are entitled to rely on them, to expect their competitors to rely on them.

[00:26:45] Speaker 00:
And here it just went too far in a discretionary direction.

[00:26:51] Speaker 00:
And that's not an appropriate way.

[00:26:54] Speaker 00:
It's hard enough to deal with the government.

[00:26:56] Speaker 00:
But it's even harder.

[00:26:58] Speaker 00:
that which you are told applies rigidly, as this court says over and over, to be told, not in this case.

[00:27:08] Speaker 03:
I think the problem, Judge, is that they don't in any way establish how it went too far.

[00:27:13] Speaker 03:
In fact, the record here reveals that Alston Wilkes kept the BOP informed of the status of the application for the special permit, that there was an extension of the voting meeting on that,

[00:27:28] Speaker 03:
And as soon as it happened, they notified and delivered it to the agency.

[00:27:33] Speaker 03:
All of which was not very long outside the deadline.

[00:27:36] Speaker 00:
But it was outside.

[00:27:37] Speaker 00:
Surely their complaint, and perhaps if there is an issue for this court, it is how rigorously and rigidly aspects which do have a discretionary flavor to them nonetheless need to be reviewed.

[00:27:54] Speaker 03:
And I think they do need to be reviewed, Your Honor, but this Court has admonished many times that, especially in a situation like this where we have a negotiated procurement with the best value component, that there's not to be a substitution of judgment, a substitution of discretion.

[00:28:10] Speaker 03:
There's clearly nothing here that is arbitrary or capricious with respect to the discretion that was exercised, with the opportunity that was given, the brief extensions that were allowed.

[00:28:23] Speaker 03:
that there simply isn't and it would require truly a mere substitution of judgment which this court has admonished many times is not supposed to happen at this level or below.

[00:28:34] Speaker 03:
And so one last thing just very quickly because it was said specifically is there was a suggestion that what was critical about this submission by Austin Wilkes in response to the discussion notice about notifying

[00:28:50] Speaker 03:
federal city council about the actual requirements of the solicitation.

[00:28:56] Speaker 03:
And it was said again, as it was mis-said in the briefs, that specifically BOP asked that it be communicated to the city council and that they were expecting and requiring a response from city council.

[00:29:09] Speaker 03:
And we addressed on page 17 of our brief in footnote two the exact language from the record.

[00:29:15] Speaker 03:
And in fact, there was no such requirement or request.

[00:29:19] Speaker 03:
What was requested was

[00:29:20] Speaker 03:
that Austin Wilkes provide documentation of communication to the appropriate officials slash proper authority, evidencing that they have been notified to the requirements as stated in the statement of work, et cetera.

[00:29:34] Speaker 03:
And in fact, that is what was done.

[00:29:37] Speaker 03:
You are simply being asked again, with no proof, with no demonstration of the burden having been met, to speculate or conjecture that

[00:29:46] Speaker 03:
Mr. Harmon is the wrong person, when in fact Mr. Harmon, the record reveals, is the man who made the initial recommendation, who presented it, who issued the letter.

[00:29:55] Speaker 03:
Mr. Sweet has established that it's very clear from the ordinance that there is a delegation of authority down to the city manager and in fact through to the planning and zoning department.

[00:30:04] Speaker 03:
So you truly would be asked to find that there was any abuse of discretion here or that there was any error in the determination of the facts by the lower court

[00:30:14] Speaker 03:
you'd be asked to just speculate wildly on three critical matters, which I don't think would be fair or appropriate.

[00:30:22] Speaker 03:
Thank you.

[00:30:24] Speaker 01:
We still have two minutes of rebuttal.

[00:30:35] Speaker 04:
Just to make a clarification of a point that both councils made previously,

[00:30:43] Speaker 04:
They both indicated that Alstow-Wilkes kept the BOP informed.

[00:30:48] Speaker 04:
This simply isn't the case.

[00:30:50] Speaker 04:
The record shows that Alstow-Wilkes did not even contact the BOP to even tell them what's going on until after that 60-day period had already expired.

[00:31:03] Speaker 04:
Three days after the fact was the first communication from Alstow-Wilkes.

[00:31:11] Speaker 01:
Yeah, but that doesn't seem to get you very far.

[00:31:12] Speaker 01:
I mean, we're in an appellate court.

[00:31:14] Speaker 01:
We're not even a trial court, even if the trial court were going to get into what exactly happened, what day who communicated with what.

[00:31:22] Speaker 01:
I think it's a stretch for us to use that and take it anywhere in terms of an appeal process, right?

[00:31:28] Speaker 04:
Sure, Your Honor.

[00:31:29] Speaker 04:
I just wanted to clarify a point that they had made that, again, no communication was made before the expiration of that deadline.

[00:31:40] Speaker 04:
Another point I wanted to rebut that Mr. Sweet made was that Bannon did raise the continued development issue in its original brief at page, I believe it was 19 and 20, I believe it was.

[00:32:00] Speaker 04:
We did cite two cases regarding despair treatment on page two of our reply, Clinic Corp and PGVA.

[00:32:09] Speaker 04:
And another point that Mr. Warner, I believe, made was that the BOP discussion notice indicated that they wanted indication from the proper officials and proper authority that they were aware.

[00:32:30] Speaker 04:
Again, that's not Mr. Harmon.

[00:32:32] Speaker 04:
That's the city council who had the authority, who were the party to vote on that special use permit.

[00:32:39] Speaker 01:
Thank you.