[00:00:00] Speaker 02:
Ready to call the first case for counsel is case number 21, 1962, Bass Realty LLC against the United States, Mr. Vora.

[00:00:28] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:32] Speaker 01:
The Court of Federal Claims ruling that Vass-Flack standing should be reversed for two reasons.

[00:00:37] Speaker 01:
First, Vass, the incumbent lessor on the leased issue, was an actual bidder with a direct economic interest in the outcome of the procurement.

[00:00:45] Speaker 01:
Standing requires no more.

[00:00:47] Speaker 01:
Second, even assuming the government's non-compliance argument, the finding GSA did not make at its time of award,

[00:00:54] Speaker 01:
Vass alleged that the actual awardee, Kate Maureen, was ineligible due to its late proposal.

[00:01:00] Speaker 01:
And per this court's rulings in Impressa and Tinton Falls, Vass had standing even if its own proposal was noncompliant.

[00:01:06] Speaker 03:
Counsel, could you speak just a tiny bit louder, please?

[00:01:08] Speaker 01:
I apologize.

[00:01:09] Speaker 01:
And per this court's rulings in Impressa and Tinton Falls, Vass had standing under those circumstances even if its own proposal was noncompliant.

[00:01:18] Speaker 01:
Now, there is no dispute that VAS was an action.

[00:01:21] Speaker 06:
Suppose we agree with you about that.

[00:01:23] Speaker 06:
You still have a laches problem in terms of securing the relief that you would like here, which is setting aside the award and ordering it to be rebid.

[00:01:36] Speaker 06:
So how do you get around that problem?

[00:01:42] Speaker 01:
Yes, Your Honor.

[00:01:43] Speaker 01:
So latches requires, it's an equitable remedy that requires the party invoking the defense to demonstrate prejudice resulting from the delay in filing.

[00:01:55] Speaker 01:
Now here, despite the fact that the award was made in October of 2018, at the time we filed our protest in October of 2020, a notice to proceed had not yet been issued, and performance on the lease had not yet begun.

[00:02:08] Speaker 01:
Not only that, the government agreed to stay issuance of that NTP pending resolution of our protest below.

[00:02:17] Speaker 01:
It's difficult to conceive how the government argues prejudice resulting from the delay, where in fact, for reasons wholly unrelated to Vastus' protest, it had taken no action on the awarded lease.

[00:02:30] Speaker 06:
Where do we find in the record the government's agreement to delay the award pending resolution of the GAO protest?

[00:02:39] Speaker 01:
No, I apologize.

[00:02:40] Speaker 01:
Pending the resolution of the Court of Federal Claims protest.

[00:02:43] Speaker 01:
after the filing of the case in the Court of Federal Claims.

[00:02:46] Speaker 01:
After the filing of the case in the Court of Federal Claims.

[00:02:49] Speaker 06:
But a long part of the delay occurred before then.

[00:02:55] Speaker 06:
Sure.

[00:02:55] Speaker 06:
It was about two years between the award and the filing of the bid protest in the Court of Federal Claims.

[00:03:01] Speaker 01:
That's correct.

[00:03:04] Speaker 01:
And I appreciate that, Your Honor.

[00:03:06] Speaker 01:
But even after the Court of Federal Claims dismissed the vastest protest in April,

[00:03:13] Speaker 01:
The government still didn't issue a notice to proceed.

[00:03:15] Speaker 01:
It didn't issue a notice to proceed until last month.

[00:03:18] Speaker 01:
And so the schedule upon which the government has been working with regards to the performance of this lease has always been entirely independent of the protests that Vass brought in October of 2020.

[00:03:33] Speaker 01:
And in the face of an OIG report from GSA indicating that this procurement was flawed in myriad different ways, the government should not be allowed to hide behind a timeliness argument, when in fact it was making no affirmative movement on a lease either way.

[00:03:56] Speaker 00:
So does that answer your question, Judge Steick?

[00:04:01] Speaker 00:
I think yes.

[00:04:02] Speaker 00:
I think you've covered it.

[00:04:04] Speaker 01:
Thank you.

[00:04:06] Speaker 01:
So with regards to the question of VAS's noncompliance, again, at the time of award, GSA did not find VAS's proposal to be noncompliant.

[00:04:16] Speaker 01:
And that's confirmed in the joint appendix at 10501, the comparison between VAS's proposal

[00:04:24] Speaker 01:
and Kate Moraine's confirms that both propose the appropriate square footage in the buildings they offered.

[00:04:32] Speaker 01:
And the government has conceded this throughout the briefing at Joint Appendix 218.

[00:04:36] Speaker 01:
It states GSA concluded that VASA's proposal was acceptable, but that VASA's higher rate would result in the agency awarding a lease to Kate Moraine.

[00:04:44] Speaker 01:
So the award was made on a low price, technically acceptable basis.

[00:04:49] Speaker 01:
It was not based upon a determination of VASA's noncompliance.

[00:04:53] Speaker 01:
But again, VASA's noncompliance is immaterial for purposes of this court's standing analysis because of the allegations in VASA's complaint that Kate Moraine was ineligible for a war due to its late proposal.

[00:05:07] Speaker 01:
And the fact that the request for lease proposals contained a late-as-late clause that GSA could not waive.

[00:05:14] Speaker 01:
We made that point in our complaint at Joint Appendix 40 and 41.

[00:05:18] Speaker 01:
We made it in our motion for judgment on the administrative record, Joint Appendix 178.

[00:05:24] Speaker 01:
And Kate Moraine's ineligibility as a result of its delayed proposal was an express finding in the OIG report, which at Joint Appendix 10568 states GSA should have eliminated Kate Moraine's late proposal.

[00:05:39] Speaker 01:
Kate Moraine itself has conceded that the lateness of its proposal was indisputable.

[00:05:46] Speaker 01:
That's at Joint Appendix 178.

[00:05:47] Speaker 01:
The Court of Federal Claims ignored all of this in its standing analysis and chose to focus only on the government's post-hoc argument that VASA's proposal was noncompliant.

[00:05:59] Speaker 01:
But again, this court's decisions in Tinton Falls and in Presa, if the allegations in a protester's complaint would result in the agency having to re-compete the procurement, which would be the case here even if you accept the government's allegations with regards to VAS's non-compliance, then VAS has a substantial chance because it would have an opportunity to compete in any new procurement.

[00:06:28] Speaker 01:
Now, the government attempts to deal with the decisions in Impreza and Tinton Falls by arguing that they're distinguishable.

[00:06:36] Speaker 01:
It argues that the Impreza holding is mere dicta.

[00:06:40] Speaker 01:
That is not the case.

[00:06:42] Speaker 01:
The question of the protesters standing in that case was the first question that this court addressed in Impreza.

[00:06:51] Speaker 01:
And the government argues that Tintin Falls' true nature was a challenge to a small business set aside.

[00:06:57] Speaker 01:
Again, here, too, the very first question the court addressed in Tintin Falls was whether the protestors' ineligibility deprived it of standing.

[00:07:05] Speaker 01:
And again, it held it did not because its allegations didn't.

[00:07:08] Speaker 03:
Were there other bidders that dropped out before any type of determination was made as to the appropriateness of their bid?

[00:07:16] Speaker 01:
In this case, Your Honor?

[00:07:17] Speaker 01:
Yes.

[00:07:18] Speaker 01:
Yes, there was one other bidder.

[00:07:22] Speaker 03:
Does Impress and Titten Falls, does that capture those types of bidders?

[00:07:28] Speaker 03:
Because there's been, we know that they're out there, they're bidded, and they're out there, but there's been no finding that their bids were defective in any way.

[00:07:39] Speaker 01:
No, Your Honor, there was only one other bidder that voluntarily withdrew from the procurement.

[00:07:44] Speaker 01:
There were no other bidders that were evaluated because no other bidder went through the entire procurement process.

[00:07:50] Speaker 01:
The only bidders remaining at the end of this competition were Vass and Kate Moraine.

[00:07:55] Speaker 01:
So, necessarily, if Vass's allegations were correct and Kate Moraine was ineligible for award,

[00:08:05] Speaker 01:
VAS would be the only remaining bidder in the competition.

[00:08:08] Speaker 03:
So I'm just exploring what that does to this court's decision in Impressa and Tenton Falls, where we found that the GSA must re-bid the contract because all bids were defective.

[00:08:21] Speaker 03:
But in this case, there's bids that were entered the process, the landscape anyway, for a while, and then disappeared with the potential that they were not defective.

[00:08:34] Speaker 03:
Does this change those two cases in any way?

[00:08:37] Speaker 01:
I don't believe so.

[00:08:38] Speaker 01:
I mean, the fact that there was another bidder that voluntarily withdrew before the procurement was completed, I mean, that was a voluntary decision not to attempt to win the lease.

[00:08:49] Speaker 01:
And so if this procurement, I mean, if Cape Moraine was in fact ineligible, the only other bid that GSA had

[00:08:58] Speaker 01:
was Vass's and if this court wants to accept the government's argument that Vass's bid was also ineligible, again a finding GSA never made, that would mean the lease would have to be recompeted because there would be no remaining bids left for the government to consider.

[00:09:14] Speaker 01:
So the government has attempted to distinguish those cases, in our opinion, ineffectively

[00:09:23] Speaker 01:
Kate Moraine, to its credit, does not attempt to distinguish those cases.

[00:09:26] Speaker 01:
It argues that Vass has waived its ability to invoke them.

[00:09:30] Speaker 01:
But this court consistently declines to apply the waiver doctrine to pure questions of law, which the question of Vass' standing is.

[00:09:39] Speaker 01:
And this is especially true where that question is based on facts that were developed for the trial court below.

[00:09:45] Speaker 01:
And and again here from the outset of its complaint vast has alleged that Kate moraine's proposal was ineligible for award due to the fact it was submitted after the rlp's proposal submission deadline the only thing vast didn't argue below Was that both if both bidders were ineligible for award it would still have standing and the reason that it didn't do that is

[00:10:07] Speaker 01:
is because GSA never found Vass's proposal to be ineligible.

[00:10:11] Speaker 01:
That is an argument the Department of Justice raised only post-hoc after the protest had been filed.

[00:10:19] Speaker 01:
And Vass's position was then, and it remains, that that is a counterfactual that should not serve as the basis to, nor could it, serve as the basis to deny Vass' standing in this case.

[00:10:41] Speaker 01:
Again, to the delay question, and Judge Dyke already asked about it and we've spoken about it a bit, but I think it's worth noting that the real animating factor of VASA's protest in 2020 was the issuance of the Office of Inspector General report that indicated that the procurement was significantly flawed and the integrity of the award process was compromised.

[00:11:10] Speaker 01:
It confirmed that Kate Moraine's proposal was ineligible for award because it was late.

[00:11:16] Speaker 01:
It found that Kate Moraine had falsely represented its control of its offered property.

[00:11:21] Speaker 01:
And it concluded that GSA had incorrectly calculated the prices of the offered proposals such that had it conducted an appropriate analysis of those prices, it would have been Vass's proposal, not Kate Moraine's.

[00:11:38] Speaker 01:
that was the lowest price off Roar and under the RLP's award structure in line for the award.

[00:11:46] Speaker 03:
So, counsel, let me take you back to some questions that Judge Dyke was asking you.

[00:11:51] Speaker 03:
And I have concerns about the delay as well, and you're seeking injunctive relief.

[00:11:57] Speaker 03:
And the record shows that there was a 15-month delay after the OIG dismissed the protest.

[00:12:04] Speaker 03:
There was a six-month delay after receipt of the OIG's report.

[00:12:10] Speaker 03:
And all of this is in the context of you seeking an injunction.

[00:12:15] Speaker 03:
And to me, anyway, an injunction signifies some sort of immediate harm or immediate threat.

[00:12:23] Speaker 03:
But yet, that's belied by the significant delay that you had in bringing the case.

[00:12:31] Speaker 01:
So Your Honor, I understand there is certainly a gap between the issuance of the OIG report and the filing of the case.

[00:12:40] Speaker 01:
But the OIG report was issued in March.

[00:12:42] Speaker 03:
It's more than a gap.

[00:12:43] Speaker 03:
In terms of what we're talking, it's more like a chasm.

[00:12:48] Speaker 01:
You know, I will concede the characterization.

[00:12:56] Speaker 01:
But the point is that we filed the protest only after having confirmed that GSA had not acted on the lease.

[00:13:05] Speaker 01:
It had not authorized the awardee to begin performance upon it.

[00:13:08] Speaker 01:
And performance hadn't begun upon it.

[00:13:12] Speaker 01:
I apologize.

[00:13:12] Speaker 01:
I see I'm in my rebuttal time.

[00:13:14] Speaker 01:
May I respond to your question?

[00:13:16] Speaker 02:
Okay, but let me just follow up a little bit because I think this is really the most significant problem in your case.

[00:13:25] Speaker 02:
Other than that, as I'll discuss with the government, I see a real problem with them awarding the bid when both sides are, for one reason or other, disqualified.

[00:13:37] Speaker 02:
However, this very issue that Judge Raina has mentioned seems to, now that we get to talking about the equities rather than the law, to be a serious obstacle.

[00:13:52] Speaker 02:
So can you take another moment to see if you can explain it away?

[00:13:56] Speaker 01:
Sure.

[00:13:57] Speaker 01:
I'm happy to, Your Honor.

[00:14:00] Speaker 01:
The facts are these.

[00:14:02] Speaker 01:
Despite the fact that GSA awarded the lease in 2018, it took no action upon it.

[00:14:09] Speaker 01:
And Bassett's decision to file a protest in 2020 was based upon that fact.

[00:14:15] Speaker 01:
GSA made an award in October of 2018 and issued the notice to proceed in 2018 and the new awardee begun to build that work, presumably by then the government would have moved into its new building.

[00:14:28] Speaker 01:
I agree, the equities would weigh against an injunction and in fact there would be nothing left to enjoin.

[00:14:34] Speaker 01:
But for whatever reason, reasons that are unexplained, GSA has never acted with any sort of expediency in the issuance of the notice to proceed or the efforts to move into the new building.

[00:14:45] Speaker 01:
And in fact, there is no actual prejudice to the government here, because it's still at least six months away from moving into the new building.

[00:14:55] Speaker 01:
And it is currently housed in a building.

[00:14:58] Speaker 01:
It's housed in Vass's property.

[00:15:00] Speaker 01:
That lease runs through at the very least April of 2022.

[00:15:04] Speaker 01:
And under these circumstances, where the lease was awarded under such a cloud, a cloud that has already been confirmed by GSA's own Office of the Inspector General,

[00:15:13] Speaker 01:
The equity's way in favor of GSA going back and just redoing this procurement from scratch.

[00:15:20] Speaker 01:
The only real prejudice, I'm not sure, honestly, I don't know exactly what the prejudice is.

[00:15:25] Speaker 01:
Presumably it has an interest in getting into this new building for reasons that are entirely unexplained to me or unexplained in the record given just how problematic the award was and the misrepresentations the OIG found that the awardee made in order to secure the lease.

[00:15:42] Speaker 01:
Under those circumstances, I do believe the equity's way in favor of redoing this procurement from the start, not only for VAS, it's certainly in VAS's interest, but it's in the taxpayer's interest to ensure that the lease is awarded properly to a company that has not misrepresented any aspect of its proposal and complied with all the procedural rules that govern the procurement.

[00:16:05] Speaker 02:
Okay.

[00:16:05] Speaker 02:
Thank you.

[00:16:06] Speaker 02:
And we'll save you rebuttal time.

[00:16:07] Speaker 01:
Thank you, Your Honor.

[00:16:27] Speaker 05:
Thank you, Your Honor, and may it please the Court.

[00:16:30] Speaker 05:
Vass's proposal was non-responsive.

[00:16:33] Speaker 06:
The RLP required exactly 20,000- I don't understand how the government can dismiss our holding about standing in presa as dictum.

[00:16:43] Speaker 06:
Doesn't the Court have an obligation to determine whether the parties have standing?

[00:16:48] Speaker 05:
Yes, the Court does.

[00:16:50] Speaker 06:
OK, so how can you dismiss that decision as dictum?

[00:16:55] Speaker 05:
Excuse me, your honor, which question?

[00:16:58] Speaker 06:
Impresa holds that under circumstances identical to this, the losing bidder has standing, even though the contract could not be awarded but would have to be rebid.

[00:17:14] Speaker 06:
I don't understand how you can dismiss Impresa's holding that under those circumstances, the party has standing as dictum.

[00:17:26] Speaker 05:
We don't believe that it's dicta in presa.

[00:17:29] Speaker 06:
Well, that's what your brief said, didn't it?

[00:17:33] Speaker 06:
Isn't that what your brief said?

[00:17:34] Speaker 05:
With respect applying it to the... Isn't that what your brief said?

[00:17:37] Speaker 06:
I believe so, but the legal issue in this case is whether... I don't think that it's desirable for the government to make arguments which are facially incorrect in its brief.

[00:17:50] Speaker 06:
We expect something better from you.

[00:17:54] Speaker 05:
Your Honor, thank you.

[00:17:55] Speaker 05:
That's noted, and we will take that to heart.

[00:17:59] Speaker 05:
But I would like to add that the legal issue here is whether this case is more like Impreza or more like Myers.

[00:18:08] Speaker 05:
And in Myers, when the court explained that you need to take one step farther than Impreza, and you need to look to whether the protester

[00:18:20] Speaker 05:
was qualified to bid on the contract.

[00:18:22] Speaker 05:
And if you look at this particular case, three times VAS was told that it was required to bid and offer exactly 20,579 square feet.

[00:18:36] Speaker 05:
And if you go to the appendix at page.

[00:18:38] Speaker 03:
That whole point that you just made, counselor, it seems to me that all of that signifies to me an ongoing negotiation.

[00:18:48] Speaker 03:
And not that Vass was ever told that they were disqualified or somehow were not qualified to proceed any further.

[00:18:58] Speaker 05:
Well, in the first deficiency letter, they were directed to bid on the correct amount of square footage.

[00:19:09] Speaker 05:
But even in their third submission, Vass

[00:19:17] Speaker 03:
They're business people, and they're still trying to deal with over 5,000 square feet and no more parking spaces for it.

[00:19:28] Speaker 03:
And so they're trying to come up with a way to handle this in a commercial way.

[00:19:35] Speaker 03:
It's the marketplace.

[00:19:36] Speaker 03:
And you're in the marketplace, and they're negotiating to the best of their ability.

[00:19:42] Speaker 03:
But you never did tell them, you're out.

[00:19:44] Speaker 03:
You're disqualified.

[00:19:46] Speaker 03:
No, stop.

[00:19:47] Speaker 03:
It may be debatable whether the government led Avast.

[00:19:57] Speaker 03:
But either way, the government never did actually stop those negotiations.

[00:20:02] Speaker 03:
They kept on going to the very end.

[00:20:04] Speaker 05:
Yes, the government kept on negotiating till the very end.

[00:20:06] Speaker 05:
But I do want to clarify one point regarding parking spaces.

[00:20:13] Speaker 05:
For the third submission, the government had changed the number of parking places required and drastically reduced the number of parking spaces.

[00:20:20] Speaker 05:
So parking, if it had ever been an issue, was no longer an issue.

[00:20:25] Speaker 03:
There was an issue in that they had over 5,000 square feet, but no more parking spaces.

[00:20:32] Speaker 03:
So that meant that this remnant of square footage was not marketable.

[00:20:40] Speaker 03:
So they're trying to give it to you at a reduced deal.

[00:20:44] Speaker 03:
And that's where the negotiations were.

[00:20:48] Speaker 05:
But that was not the government's need.

[00:20:49] Speaker 05:
And at the end of the day, what their offer required was that the government pay the actual shell rent rate, which is confidential, per square foot.

[00:21:00] Speaker 05:
And it would be escalated over the years exactly in the same manner for the square foot as that the government was going to purchase.

[00:21:07] Speaker 05:
So what Bass did was sought to compel the government to purchase to lease

[00:21:19] Speaker 05:
space that it neither needed nor wanted.

[00:21:21] Speaker 03:
So you agree that the negotiations continued to the very end.

[00:21:26] Speaker 03:
But during that time, Vassel's never told that your bid's defective.

[00:21:33] Speaker 05:
It had been told that its bid was defective.

[00:21:38] Speaker 05:
It was first told after its first submission that it provided the wrong amount of square footage.

[00:21:45] Speaker 05:
After its second submission,

[00:21:49] Speaker 05:
After its second submission, Vass was again told it was outside of the competitive range.

[00:21:55] Speaker 05:
And in its third submission, it nevertheless included that excess space.

[00:22:01] Speaker 05:
So Vass was well aware of those facts.

[00:22:08] Speaker 05:
And if we look at the court's very recent decision,

[00:22:17] Speaker 05:
the court's very recent decision in asset protective, it was a very similar fact pattern where, as the trial court noted, there was a price element.

[00:22:28] Speaker 05:
And even though the bid was non-compliant, the contracting officer still included the protester's bid within his analysis.

[00:22:44] Speaker 06:
So how is it?

[00:22:46] Speaker 06:
that the government was prejudiced by the two-year delay commencing this case after the award?

[00:22:52] Speaker 05:
Well, the notice to proceed is only the final step of the preparation process.

[00:22:57] Speaker 05:
The first step is that the government and the awardee are required to actually design what the space is going to look like.

[00:23:05] Speaker 05:
So how was this 20,000-plus square feet going to be laid out?

[00:23:10] Speaker 05:
So the parties had to come to an agreement on architectural drawings.

[00:23:14] Speaker 05:
And that did not occur, I believe, until the summer.

[00:23:16] Speaker 06:
I asked you a specific question.

[00:23:17] Speaker 06:
How was the government prejudiced by the two-year delay?

[00:23:21] Speaker 05:
Because the government did sink a tremendous amount of work in initially getting the drawings and an agreement on how the space was going to be laid out, so the government has already sunk a tremendous amount of effort into this process.

[00:23:39] Speaker 05:
And then as counsel for the protestor noted, the government

[00:23:46] Speaker 05:
issued its NTP.

[00:23:48] Speaker 05:
It was on September 3rd.

[00:23:51] Speaker 05:
And the expectation is that there will be a 120-day build-out.

[00:23:55] Speaker 05:
So construction is occurring right now.

[00:23:58] Speaker 05:
And the hope is to have a certificate of occupancy in the first quarter of next year.

[00:24:02] Speaker 05:
So the government has put a significant amount of effort into this procurement, even before issuance of the NTP.

[00:24:13] Speaker 05:
Is that reflected in the record?

[00:24:15] Speaker 05:
No, it's not reflected in the record.

[00:24:18] Speaker 05:
Just as plaintiff's contention isn't reflected in the record, plaintiff's contention that the government's not prejudiced either.

[00:24:27] Speaker 03:
When we look for prejudice, we look for it in the record whether they contend it's in there or not.

[00:24:36] Speaker 03:
So was there prejudice?

[00:24:39] Speaker 03:
Where in the record was it?

[00:24:42] Speaker 03:
That was the question we asked them.

[00:24:45] Speaker 05:
There's no record evidence.

[00:24:49] Speaker 05:
And the main reason for that is that this all occurred after award of the contract.

[00:24:54] Speaker 05:
So you're not going to find something like that in the administrative record.

[00:24:57] Speaker 05:
And we did not attach any sort of declaration regarding prejudice.

[00:25:02] Speaker 06:
OK, but look, the administrative record is not going to disclose the relevant facts about latches, which is your argument.

[00:25:11] Speaker 06:
Latches is an affirmative defense, right?

[00:25:14] Speaker 06:
Don't you have the obligation to show prejudice?

[00:25:17] Speaker 05:
Yes, it's an affirmative defense.

[00:25:19] Speaker 05:
And to be precise, we're not alleging latches for dismissal of the case.

[00:25:25] Speaker 05:
What we're alleging is an untimely.

[00:25:27] Speaker 06:
We're alleging latches as a defense to equitable relief.

[00:25:31] Speaker 06:
As opposed to equitable relief only, yes.

[00:25:34] Speaker 06:
But you still have the burden to show prejudice.

[00:25:37] Speaker 06:
I don't understand why the record is silent on the prejudice.

[00:25:41] Speaker 05:
because we did not submit a declaration regarding prejudice facing the government.

[00:25:50] Speaker 05:
Instead, we stayed our hand so that the trial court could reach an orderly determination regarding this matter.

[00:26:00] Speaker 03:
I think if you're going to rely on latches, regardless of the basis of that reliance,

[00:26:12] Speaker 03:
that you submit some form of proof of prejudice?

[00:26:17] Speaker 05:
Yes, we understand that.

[00:26:26] Speaker 05:
I see that my time is up.

[00:26:28] Speaker 05:
The court has no further questions.

[00:26:29] Speaker 02:
Yes.

[00:26:30] Speaker 02:
Thank you.

[00:26:31] Speaker 02:
Thank you, Mr. Chairman.

[00:26:35] Speaker 02:
OK, Mr. Gordon.

[00:26:42] Speaker 02:
Mr. Gordon, please come forward.

[00:27:23] Speaker 02:
Thank you.

[00:27:23] Speaker 02:
Proceed.

[00:27:24] Speaker 04:
May it please the court.

[00:27:29] Speaker 04:
Vass's standing arguments to this court are waived because Vass did not raise them before the Court of Federal Claims.

[00:27:40] Speaker 04:
The government and Kate Moraine challenged Vass's standing before the Court of Federal Claims on the ground that its bid was noncompliant.

[00:27:52] Speaker 04:
Vass

[00:27:53] Speaker 04:
which was represented by able, sophisticated, and experienced counsel, made one response and one response only.

[00:28:03] Speaker 04:
And that was to deny that its bid was not compliant.

[00:28:07] Speaker 04:
It insisted that its bid was compliant.

[00:28:10] Speaker 04:
It did not make the arguments that it now advances to this court.

[00:28:15] Speaker 04:
Accordingly, it, under the well-established principle of this court, has waived those arguments.

[00:28:22] Speaker 04:
and should not be heard to argue the Court of Federal Claims erred by not ruling on an argument that it did not make, namely the Impreza argument.

[00:28:36] Speaker 04:
Vass asked this court to relieve it the consequences of its choice.

[00:28:43] Speaker 04:
Although the court has discretion to decide an argument newly raised on appeal,

[00:28:49] Speaker 04:
It does so only rarely.

[00:28:50] Speaker 03:
Are you, counselor, are you talking about the argument that all bids were defective?

[00:28:56] Speaker 04:
Yes, your honor.

[00:28:57] Speaker 03:
But the court, it made the ruling that all bids were defective and that's how it applied the Impressa and the Tinton Falls case, right?

[00:29:07] Speaker 04:
Yes, your honor.

[00:29:08] Speaker 04:
I don't challenge Impressa or Tinton Falls.

[00:29:12] Speaker 04:
But my point is.

[00:29:13] Speaker 03:
But reaching its decision with respect to those cases, the court found that all bids were defective.

[00:29:21] Speaker 04:
OK.

[00:29:23] Speaker 04:
I don't challenge that, Your Honor.

[00:29:24] Speaker 04:
My point to the court is.

[00:29:27] Speaker 03:
So if it's in the court's decision, then how can you say that they waived it below?

[00:29:35] Speaker 04:
They didn't argue up below, Your Honor.

[00:29:37] Speaker 04:
They said not one word about him present, not one word about Tenton Falls, not one word about all the bids are noncompliant, and therefore it has to be rebid.

[00:29:46] Speaker 04:
That argument is made for the first time on appeal to this Court.

[00:29:50] Speaker 03:
I would agree with you if the Court had been silent about it or not made any type of decision with respect to the bids.

[00:29:58] Speaker 03:
But the Court found that all bids were defective.

[00:30:01] Speaker 04:
The court of federal claims did I'm sorry not in this case your honor the court of federal claims did not find that all bits were defective it found that But basses it was not compliant.

[00:30:13] Speaker 04:
It made no finding about whether or not Keep Marines bid was not compliant There is no finding in the record about that now Beyond the waiver argument

[00:30:29] Speaker 04:
And I'm happy to address any questions about it.

[00:30:31] Speaker 04:
I would like to turn to the issue of delay and prejudice, because I do have facts that I'd like to bring to the Court's attention on that.

[00:30:41] Speaker 04:
Vass argues that there's no prejudice to the government.

[00:30:46] Speaker 04:
But in fact, there is prejudice to the government.

[00:30:49] Speaker 04:
More importantly, there is clear prejudice to my client, Kate Moraine, which is also a factor in this.

[00:31:00] Speaker 04:
Submitted its bid the very day it secured an option on the property that is the basis for its bid.

[00:31:09] Speaker 04:
An option to purchase.

[00:31:12] Speaker 04:
It then submitted its bid.

[00:31:14] Speaker 04:
It received the award.

[00:31:16] Speaker 04:
There was a protest to the GAO.

[00:31:20] Speaker 04:
And therefore, there was an automatic stay.

[00:31:24] Speaker 04:
During the pendency of that, everyone stayed their hand.

[00:31:28] Speaker 04:
Once the GA ruled and dismissed that protest as being untimely, it was only at that point that Kate Moraine proceeded to execute the option to purchase for a very substantial sum the property involved and to start the work pursuant to the lease, which has involved hundreds of thousands of dollars.

[00:31:54] Speaker 06:
But where is that in the record?

[00:31:56] Speaker 04:
It is in a declaration from our client that has been submitted in response to the motion for stay pending appeal.

[00:32:07] Speaker 06:
Here, you mean?

[00:32:09] Speaker 06:
Yes, Your Honor.

[00:32:10] Speaker 06:
That's not a record before the Court of Federal Claims.

[00:32:15] Speaker 06:
Where did you make the prejudice showing in the Court of Federal Claims?

[00:32:20] Speaker 04:
We had that in the same circumstance, Your Honor.

[00:32:23] Speaker 04:
The motion for state pending an appeal was first made in the Court of Federal Claims.

[00:32:27] Speaker 06:
What you say is you exercised this option.

[00:32:29] Speaker 06:
You've incurred costs.

[00:32:34] Speaker 06:
You bought this property.

[00:32:35] Speaker 06:
To undo it now would cause substantial economic loss to your client.

[00:32:41] Speaker 06:
Where did you make a record of that in the Court of Federal Claims?

[00:32:45] Speaker 06:
Is that because the prejudice didn't occur until

[00:32:49] Speaker 06:
they exercised or issued the Notice to Proceed?

[00:32:54] Speaker 04:
The purchase occurred after the protest was dropped.

[00:32:57] Speaker 04:
The Notice to Proceed came only recently.

[00:33:01] Speaker 06:
I don't understand.

[00:33:02] Speaker 06:
The protest was dropped?

[00:33:03] Speaker 06:
The protest wasn't dropped.

[00:33:04] Speaker 04:
I'm sorry.

[00:33:04] Speaker 04:
The GAO protest was dismissed.

[00:33:08] Speaker 04:
There was a GAO protest that was filed in the immediate aftermath.

[00:33:13] Speaker 06:
OK.

[00:33:13] Speaker 06:
That was while the case was still pending in the Court of Federal Claims.

[00:33:17] Speaker 04:
No, it was before.

[00:33:20] Speaker 04:
It was before.

[00:33:23] Speaker 06:
So this exercise of the option and the incurring of this financial liability occurred before the case was filed in the Court of Federal Claims.

[00:33:32] Speaker 06:
So my question is, why didn't you make a record about this in the Court of Federal Claims to support Alacha's argument?

[00:33:41] Speaker 04:
Well, Your Honor.

[00:33:44] Speaker 04:
It didn't come up in terms of filing the administrative record.

[00:33:48] Speaker 04:
What happened in the Court of Federal Claims was procedurally that the administrative record was filed and the parties made cross motions for judgment on the motion for administrative record.

[00:33:58] Speaker 04:
So that was not part of the administrative record.

[00:34:02] Speaker 04:
We didn't proceed that far.

[00:34:08] Speaker 03:
So the declaration you're telling us about is not part of the record that was before the Court of Federal Claims?

[00:34:13] Speaker 04:
It's before the Court of Federal Claims as part of the motion for stay that was made there.

[00:34:20] Speaker 04:
It's also before this court as part of the motion for stay that was made here.

[00:34:24] Speaker 04:
But it's not part of the record that was before the Court of Federal Claims at the time the court ruled that Voss lacked standing.

[00:34:41] Speaker 06:
So is your argument that if we conclude that the Court of Fair Claims was wrong on the standing question, we should send the case back there to have the court address the latches issue?

[00:34:53] Speaker 04:
Well, I think the latches issue remains, Your Honor.

[00:34:56] Speaker 04:
But we submit that the court should not send it back based on Impreza, because that was not raised in the court.

[00:35:03] Speaker 04:
And it's been waived.

[00:35:04] Speaker 06:
Suppose we reject that.

[00:35:04] Speaker 06:
Because as Judge Raina pointed out, the Court of Federal Claims decided the standing question.

[00:35:11] Speaker 06:
And that's before us.

[00:35:12] Speaker 06:
Let's assume that there's no waiver.

[00:35:14] Speaker 06:
If we conclude that there is standing under Impreza and Tinton Falls,

[00:35:20] Speaker 06:
The question is, what do we do about the latches question?

[00:35:23] Speaker 06:
Do we decide it here, or do we send it back to the Court of Federal Claims to address it?

[00:35:29] Speaker 04:
Well, typically, the answer, I think, is this, Your Honor.

[00:35:37] Speaker 04:
If the case typically on unresolved issues, it would be remanded to the trial court to address in the first instance.

[00:35:46] Speaker 04:
That obviously is the general rule.

[00:35:49] Speaker 04:
There is an exception when the facts are sufficiently clear that there's only one answer.

[00:35:55] Speaker 04:
And we are in a situation where this protest was not filed in the court of federal claims until, as you, Your Honor, have pointed out, two years after the award, six months after the VAS learned about the IG report, which they now want to trumpet,

[00:36:16] Speaker 04:
And as we sit here today, we're three years past the award.

[00:36:22] Speaker 04:
And there's been millions of dollars and hundreds of hours invested in moving forward with the lease that was awarded.

[00:36:32] Speaker 04:
So how, under these circumstances, a court could grant equitable relief on doing the whole thing?

[00:36:42] Speaker 03:
If those determinations involve factual findings, which it appears that it does, shouldn't we send this back to the Court of Federal Claims to decide those factual issues in the first instance?

[00:37:02] Speaker 04:
Well, I think that the court can take judicial notice of virtually all of those facts.

[00:37:11] Speaker 06:
I think that's pretty hard.

[00:37:14] Speaker 06:
You're talking about taking judicial notice that you bought a property and invested millions of dollars in it.

[00:37:19] Speaker 06:
That's sort of tough.

[00:37:22] Speaker 06:
It's not in the record before the claims court.

[00:37:27] Speaker 02:
Any more questions from this board?

[00:37:30] Speaker 06:
Just one other question.

[00:37:31] Speaker 06:
You agree that if we reject your waiver agreement that there is standing under Impreza and Tinton Falls?

[00:37:39] Speaker 04:
I wouldn't dispute it, Your Honor.

[00:37:41] Speaker 06:
You wouldn't dispute it?

[00:37:42] Speaker 06:
Nor, Your Honor.

[00:37:43] Speaker 06:
Okay, thank you.

[00:37:46] Speaker 02:
Okay.

[00:37:46] Speaker 02:
Thank you.

[00:37:51] Speaker 02:
Okay.

[00:37:59] Speaker 02:
Yes, Mr. Vara.

[00:38:00] Speaker 01:
Thank you, Your Honors.

[00:38:03] Speaker 01:
Just a few points, and Judge Dyck, to answer your question.

[00:38:06] Speaker 01:
Latches does go to the remedy available, not to the question of standing.

[00:38:10] Speaker 01:
And so if this court finds that Vass does have standing, the appropriate action is to send the matter back to the Court of Federal Claims to determine the appropriate available remedy.

[00:38:20] Speaker 06:
Well, are you seeking any remedy other than an injunction against the award?

[00:38:25] Speaker 01:
No, we're not.

[00:38:27] Speaker 01:
But the injunction here would be an injunction pending this court's determination of the appeal.

[00:38:34] Speaker 06:
No, in the Court of Federal Appliance, the only relief you're seeking is an injunction setting aside the award, right?

[00:38:40] Speaker 01:
That's correct.

[00:38:43] Speaker 01:
And on that question as to whether an injunction is appropriate, I think Your Honor's made the point.

[00:38:50] Speaker 01:
Neither the government nor Kate Moraine has identified a cognizable prejudice that weighs against an injunction here.

[00:38:57] Speaker 01:
I mean, the government has referenced a tremendous amount of work that went into this.

[00:39:01] Speaker 03:
Let's go back to your remedy.

[00:39:02] Speaker 03:
How does that help you?

[00:39:04] Speaker 03:
Why is that favorable to you?

[00:39:07] Speaker 01:
Why is an injunction favorable to Bass?

[00:39:09] Speaker 03:
The relief that you just say that you seek.

[00:39:12] Speaker 01:
An injunction pending resolution of the protest ensures that Kate Moraine cannot get so far into the build-out process that even if the Court of Federal Claims rules in vastest favor, the government says, look, there's just nothing left to be done here.

[00:39:28] Speaker 03:
Don't you want them to reopen the bidding?

[00:39:31] Speaker 01:
We do, but to get there.

[00:39:33] Speaker 03:
Is that part of your prayer for relief under the injunction?

[00:39:37] Speaker 01:
Well, sure, if we prevail on the merits.

[00:39:41] Speaker 01:
But currently, we're seeking an injunction.

[00:39:42] Speaker 03:
That wasn't your answer to Judge Dyke.

[00:39:45] Speaker 01:
Well, I apologize if I misspoke.

[00:39:47] Speaker 01:
Yes, we want to enjoin GSA to set the lease aside and rebid the procurement.

[00:39:55] Speaker 01:
But the need for an immediate injunction here, and the reason we requested it from this court after having requested it from the Court of Federal Claims pending resolution of this appeal,

[00:40:05] Speaker 01:
is because the immediate concern is, even if we prevail on the merits of our protest before the Court of Federal Claims, if Kate Moraine is allowed to continue the build-out process... How can you argue immediacy or imminency if you've let so much time go by?

[00:40:25] Speaker 01:
Again, Your Honor, the reason we can do that is because the government wasn't doing anything.

[00:40:29] Speaker 06:
It never authorized... Do you dispute that now that Kate Moraine has spent this money

[00:40:35] Speaker 06:
to acquire the property?

[00:40:39] Speaker 01:
I don't dispute that Kate Moraine put in a declaration so stating.

[00:40:42] Speaker 01:
I would argue that that does not count as prejudice, because Kate Moraine was required to offer a building that it owned or controlled in order to participate in this procurement, as was Vass.

[00:40:53] Speaker 06:
But if I understand you correctly, you don't dispute that they acquired

[00:40:57] Speaker 06:
the building and invested money for that purpose, right?

[00:41:01] Speaker 01:
I don't.

[00:41:02] Speaker 01:
I do dispute that that constitutes prejudice because that was an investment they were going to have to make no matter what in order to participate in this procurement.

[00:41:11] Speaker 01:
And in fact, Mareen's counsel's representation that they did not exercise the option on the property

[00:41:17] Speaker 01:
until Vassit's GAO protest, which was in December of 2018, reaffirms the finding in the OIG report that Kate Moraine misrepresented its ownership or control of the property at the time that it submitted its proposal.

[00:41:31] Speaker 01:
And so I don't think it's appropriate for Kate Moraine to rely upon the fact that it spent money that it was required to, no matter what, to argue prejudice.

[00:41:41] Speaker 01:
And especially where, again, there is a cloud over this procurement that has been confirmed by the Office of the Inspector General.

[00:41:51] Speaker 01:
This is not just vast saying it.

[00:41:53] Speaker 01:
And so the real salient prejudice here, if there's any, is to the government.

[00:41:56] Speaker 01:
But the government has been unable to articulate any.

[00:41:59] Speaker 01:
At best, I mean, to the extent there is a, quote, tremendous amount of work that went into the process, that sounds like some sort of monetary amount that it has not identified.

[00:42:10] Speaker 01:
And, you know, VASC throughout the process has explained its concerns about the fact that this is the only building it owns and the government is its only client here.

[00:42:20] Speaker 01:
And it is facing a real existential threat from the loss of this lease, especially where the loss is through a procurement process that is confirmed to have been fundamentally unfair.

[00:42:32] Speaker 01:
And just one last point, I'd like to make Judge Raina in response to a question you had for Kate Moraine's counsel.

[00:42:39] Speaker 01:
The Court of Federal Claims did not make a finding that Kate Moraine was ineligible, which speaks to the problem of another problem in the decision.

[00:42:49] Speaker 01:
The Court of Federal Claims sort of dug through the record and adjudicated the merits to come up with a basis to determine Vass was ineligible without doing the same thing

[00:42:59] Speaker 01:
for Kate Moraine.

[00:43:00] Speaker 01:
And this court in Orion said that is an improper way to determine standing on a motion to dismiss.

[00:43:07] Speaker 01:
Unless there are any other questions, I will rest at this point.

[00:43:10] Speaker 02:
Any more questions?

[00:43:13] Speaker 02:
Okay.

[00:43:14] Speaker 02:
Thank you.

[00:43:14] Speaker 02:
Thanks to all counsels because it's taken under submission.