[00:00:00] Speaker 03:
The first case this morning is 241245, Bear Mountain Realty versus United States.

[00:00:08] Speaker 03:
Mr. Rolnick, are you ready?

[00:00:11] Speaker 04:
Good morning, Your Honor.

[00:00:12] Speaker 04:
Thank you.

[00:00:15] Speaker 04:
I believe that there are very important public policies at stake on this appeal.

[00:00:20] Speaker 04:
The first important public policy, of course, is that the government has an obligation

[00:00:26] Speaker 04:
to run competitive bidding processes and award contracts to the lowest.

[00:00:30] Speaker 01:
You know we don't adjudicate policy.

[00:00:33] Speaker 04:
Yes, but I think policy should inform the way in which bid protests are.

[00:00:38] Speaker 01:
We're informed by oppression.

[00:00:41] Speaker 04:
OK, well, I think even the precedent supports the idea that bid protests serve an important function.

[00:00:49] Speaker 04:
And they are a private mechanism for ensuring that bid procedures are followed properly and that bid awards are made properly.

[00:01:01] Speaker 04:
And I submit that the decision of the court below undercut both of those public policies.

[00:01:09] Speaker 04:
That is, the public policy of government awards and the public policy that should promote it.

[00:01:18] Speaker 03:
So what are you seeking as we leave here?

[00:01:20] Speaker 03:
I mean, all this happened several years ago.

[00:01:22] Speaker 03:
I don't know exactly if it's in the record what the current status is of these various facilities that come three out there.

[00:01:29] Speaker 03:
What are you seeking as relief?

[00:01:33] Speaker 04:
Two things, at least.

[00:01:35] Speaker 04:
One is a finding that, in fact, the bid was improperly canceled, which I believe would entitle my client to recover at least the costs of mounting the bid protest, which are not insignificant, hundreds and hundreds of thousands of dollars.

[00:01:54] Speaker 04:
go into these bid protests, then in fact, if my client was correct and the bid was canceled to prevent award to my client.

[00:02:04] Speaker 03:
So it's the cost of putting together the bid protest.

[00:02:07] Speaker 03:
You're not talking about the costs of litigating the cancellation.

[00:02:13] Speaker 04:
Both.

[00:02:14] Speaker 03:
Both.

[00:02:14] Speaker 03:
OK.

[00:02:14] Speaker 04:
Yeah.

[00:02:15] Speaker 04:
And in addition, since this bid is likely to, at least if the government can be believed, the bid is going to be

[00:02:25] Speaker 04:
solicited again, since we've already gone through this process three times, we would like to have some kind of prophylactic or injunctive relief instructing the government not to improperly exclude or take actions that have the effect of trying to prevent an unfair or an unlawful solicitation.

[00:02:48] Speaker 04:
I think in this case,

[00:02:50] Speaker 02:
So what's your best evidence in the record that there was some sort of pretext that was driving the cancellation?

[00:02:58] Speaker 04:
Well, there's abundant evidence, but I'll point to the best evidence.

[00:03:04] Speaker 04:
The best evidence is that there was a history.

[00:03:09] Speaker 02:
You can give us your JA page, so don't just describe it.

[00:03:12] Speaker 02:
But if you can point us to something in the record or a specific page of the appendix, that'd be most useful.

[00:03:17] Speaker 04:
Sure.

[00:03:18] Speaker 04:
So when the government, when the IRS was informed that Bear Mountain site had won the bid, there was an immediate response in which they said, and I'll get the Burkitt sites in a second, but let me describe it first.

[00:03:39] Speaker 04:
The immediate response was, how could this have happened?

[00:03:42] Speaker 04:
We tried to prevent this from happening.

[00:03:45] Speaker 04:
put together our best arguments, and we'll go have a meeting with the GSA, and we'll convince the GSA to give the award to Springfield and not Mountainside.

[00:03:56] Speaker 04:
And then we see in the record efforts by the IRS.

[00:03:59] Speaker 03:
It's important, though, who said this?

[00:04:02] Speaker 03:
I mean, these weren't the ultimate deciders or the ultimate players in this, right?

[00:04:07] Speaker 03:
I think that the Court of Federal Claims identified Mr. Mount as the key player, not Mr. Huba and Mr. Lopez, right?

[00:04:16] Speaker 04:
Well, I mean, I think they were all discussing it together.

[00:04:18] Speaker 04:
And I think that they reached an agreement among the three of them, Huba and Mount.

[00:04:27] Speaker 04:
and the other person whose name you just mentioned.

[00:04:31] Speaker 04:
So they try to get evidence.

[00:04:33] Speaker 04:
They collect this evidence saying, this is a superior building.

[00:04:37] Speaker 04:
They run out and they say, let's try to see if we can find some deficiency reports from Bear Mountainside.

[00:04:44] Speaker 04:
It turns out that there are no deficiency reports.

[00:04:48] Speaker 04:
Then there's a critical September 27 meeting where the IRS is saying they're going to go talk to the GSA and convince the GSA not to award the contract to Mountainside.

[00:05:01] Speaker 04:
And what happens after that September 27 meeting, I think, is critical.

[00:05:07] Speaker 04:
After this September 27 meeting, they don't come out and say, oh, our needs have changed.

[00:05:15] Speaker 04:
Instead, the GSA reaches out to Bear Mountainside and writes a very carefully drafted email that says, we've looked at your bid.

[00:05:26] Speaker 04:
Your bid is well below the bids of other participants.

[00:05:30] Speaker 04:
You have a lot of obligations under this lease.

[00:05:33] Speaker 04:
These obligations are going to be very expensive.

[00:05:36] Speaker 04:
And in light of your bid, we want you to understand you're still going to have to do all this work.

[00:05:43] Speaker 04:
revisit or reconsider whether or not your bid is sufficiently high to allow you to satisfy all your obligations.

[00:05:51] Speaker 03:
Isn't that quite a reasonable request?

[00:05:53] Speaker 03:
I mean, if someone comes in with the bid and there's a record of, you're right, IRS employees complaining about the facility and the upkeep, that someone would come back to you and say,

[00:06:06] Speaker 03:
check out the numbers, because you're going to need to make sure you're upkeeping the property.

[00:06:11] Speaker 03:
All of this seems pretty normal and natural to me.

[00:06:15] Speaker 04:
I guess the question is, would you expect them to come and say, hey, we don't want to award the bid to you, so we're going to try to see if we can make your bid increase?

[00:06:26] Speaker 04:
And you have to look at it in light of what the IRS is trying to get them.

[00:06:32] Speaker 04:
to not award to Mountainside.

[00:06:34] Speaker 04:
So yeah, I think it's very unusual to come to a bidder and say, maybe you should consider increasing your bid.

[00:06:42] Speaker 04:
But let's draw the inferences, right?

[00:06:44] Speaker 04:
Because we're not even being given an evidentiary record here.

[00:06:47] Speaker 04:
We're not being allowed to have any depositions.

[00:06:49] Speaker 04:
We're not being allowed to question anybody.

[00:06:52] Speaker 04:
We're only getting this information from a Freedom of Information Act request.

[00:06:55] Speaker 02:
Did you also get interrogatories?

[00:06:57] Speaker 02:
Is my recollection correct in that regard?

[00:06:59] Speaker 04:
The interrogatory sprinklers are useless.

[00:07:01] Speaker 04:
Answer my question.

[00:07:03] Speaker 02:
Did you get interrogatory sprinklers?

[00:07:04] Speaker 04:
Yes, we got interrogatory responses that were self-serving, conclusory, and useless.

[00:07:08] Speaker 04:
But let me just try to focus the court on the key timeline here.

[00:07:13] Speaker 02:
I mean, you didn't even answer my question.

[00:07:14] Speaker 02:
I asked you for where in the record is the best support from the pretext argument.

[00:07:19] Speaker 02:
And you keep telling me you're going to get to it, but I'd like you to get to it now.

[00:07:23] Speaker 04:
I was going to describe it, then I'm going to give you the record set.

[00:07:26] Speaker 04:
I don't have it at my fingertips.

[00:07:27] Speaker 04:
It's in my outline, but I will give it to you.

[00:07:29] Speaker 04:
The critical point is, on October 3rd, they come to us and say, will you consider increasing your bid?

[00:07:37] Speaker 04:
I mean, on September 30th.

[00:07:38] Speaker 04:
On October 3rd, we say no.

[00:07:40] Speaker 04:
And then, to me, the key email is the one that Terry Mount then sends that says, and I'll give you the record set in just a second, but the email says,

[00:07:53] Speaker 04:
In light of lesser issues at Mountainside and reluctance on the part of GSA to engage, we're changing our strategy.

[00:08:09] Speaker 04:
And what that document is telling you is they have their meeting on the 27th.

[00:08:13] Speaker 04:
Nobody ever said anything about any changed circumstances.

[00:08:17] Speaker 04:
They come to us and say, in fact, the circumstances haven't changed.

[00:08:21] Speaker 04:
Show us that you can perform.

[00:08:23] Speaker 04:
these requirements, we then say no.

[00:08:26] Speaker 04:
And the very next piece of evidence, the very next piece of evidence is a statement from Terry Mount, we've changed our minds, we're not doing this solicitation.

[00:08:35] Speaker 04:
And then in an internal email, he says, the reason for changing

[00:08:40] Speaker 04:
The strategy is because they don't like the lesser mountainside, and the GSA is not playing ball with them.

[00:08:51] Speaker 04:
And I'll give you the record site for that email, which we got only through FOIA, again, and not through Discover.

[00:08:59] Speaker 03:
But all of your analysis about what happened and what information you gleaned in the emails kind of ignores the backdrop, which I think is not disputed.

[00:09:10] Speaker 03:
Personally, you've got two facilities really close to each other, and there's some questions raised about what the most efficient thing is to do between these two facilities.

[00:09:18] Speaker 03:
You've got a third facility that seems desirable that they got their eye on.

[00:09:24] Speaker 03:
You've got this elephant in the room called COVID, where I think every person in this room probably have the experience, as we did in even this court, of trying to discern bringing people back after an absence of a year or two, calculating who's going to be working remotely and who's not, and trying to bring all these people back.

[00:09:47] Speaker 03:
And then you've got the Inflation Reduction Act, which passes about the same time, which I think gives IRS another $80 billion to extraordinarily increase the number of workers they have, their workforce.

[00:10:00] Speaker 03:
So people at IRS have a lot going on in this context, which is very much related to determining where these people ought to be and what leases they ought to be engaging in.

[00:10:14] Speaker 03:
You may have emails that don't talk about that, but that doesn't erase the fact that that was going on.

[00:10:20] Speaker 03:
And I think every manager in the country was confronting those issues at that time.

[00:10:24] Speaker 03:
Am I wrong?

[00:10:25] Speaker 04:
Yes, I think you are wrong for two reasons.

[00:10:27] Speaker 04:
First, that site is appendix number 80.

[00:10:30] Speaker 04:
I think you're wrong for two reasons.

[00:10:31] Speaker 04:
First of all, all that was known before the solicitation was launched.

[00:10:35] Speaker 04:
Second, if that actually happened, what you're suggesting and what they're saying in their self-serving affidavits, you would expect at least one document

[00:10:44] Speaker 04:
one meeting that somebody could say, yeah, after we went to you and tried to get you to increase your bid, in that two-week period that ensued between that date and when we canceled the solicitation, there would be one meeting, one document, anything that suggested that this was, in fact, the reason.

[00:11:02] Speaker 04:
It's not the reason because all of that was well-known before the solicitation even began.

[00:11:07] Speaker 03:
Well, it was well-known, but it's a transient situation, and it takes a while to figure out how to deal with it.

[00:11:13] Speaker 03:
There were a lot of hiccups for every employer and every facility in the country in terms of doing this.

[00:11:18] Speaker 03:
It's not something is known, and therefore we know what the solution is going to be, and we're going to implement it.

[00:11:24] Speaker 03:
That didn't happen in one minute.

[00:11:25] Speaker 03:
That's something that happens over time.

[00:11:27] Speaker 04:
There's no evidence of it.

[00:11:29] Speaker 04:
There's no evidence of it other than an after-the-fact.

[00:11:32] Speaker 04:
There's no record evidence from the time the solicitation was made

[00:11:37] Speaker 04:
throughout all of the bidding in July and August, dozens and dozens and dozens of communications.

[00:11:44] Speaker 04:
No discussion of it when the award was made.

[00:11:47] Speaker 04:
No discussion of it when the IRS was informed the award was made.

[00:11:50] Speaker 04:
No discussion of it at the September 27 meeting with the GSA where they're attempting to tell the GSA, don't award it to Mountainside, award it to Springfield.

[00:12:00] Speaker 04:
There's no mention of it.

[00:12:01] Speaker 04:
If there was any mention of it, why would they come back to us and say, you're expected to perform according to these requirements and re-examine whether your bid is high enough?

[00:12:11] Speaker 04:
They would say, oh, change circumstances.

[00:12:13] Speaker 04:
Nobody ever said that.

[00:12:15] Speaker 04:
There's nothing in the record.

[00:12:16] Speaker 04:
It's just made up.

[00:12:18] Speaker 03:
Well, I don't know where it's in the record.

[00:12:21] Speaker 03:
There's something dated November 3rd, 2022 from Mr. Mount to Ms.

[00:12:25] Speaker 03:
Fitzpatrick.

[00:12:27] Speaker 03:
And it indeed does talk about the consolidation of operations.

[00:12:32] Speaker 03:
business needs, the need for additional storage, the location of the IRS employees.

[00:12:39] Speaker 04:
That November 3rd email is a duplicate of an October 27th email in which you circulated internally to the IRS and said, just so you all know what's going on, we're changing our strategy because

[00:12:55] Speaker 04:
of lesser issues in Mountainside and the unwillingness of the GSA to engage with us.

[00:13:01] Speaker 04:
So he actually has a proceeding email saying that the reason that they're doing it is to prevent a ward to Mountainside.

[00:13:08] Speaker 03:
Who's the email from?

[00:13:10] Speaker 04:
Terry Mellon.

[00:13:13] Speaker 03:
This is October.

[00:13:14] Speaker 03:
I've got a list of everything here.

[00:13:17] Speaker 03:
All right, you're into your rebuttal time.

[00:13:19] Speaker 04:
Thank you, Your Honor.

[00:13:32] Speaker 00:
May I please report?

[00:13:34] Speaker 00:
Trial court correctly determined that Bear Mountainside failed to meet its heavy burden to demonstrate by clearing and convincing evidence that the government canceled the request for lease proposals in bad faith.

[00:13:46] Speaker 00:
So in October 2022, the IRS requested the GSA cancel the solicitation based on

[00:13:53] Speaker 00:
But after they canceled the solicitation, GSA came back and asked for more information.

[00:13:58] Speaker 00:
And the IRS provided that information to Mr. Mounted in that they planned on new hires, a need for additional storage space, and an intent to consolidate the IRS operations in the Mountainside and Springfield building to Island, New Jersey, which the IRS described as walking distance to the northeastern corridor train rail and an ideal location for IRS employees and customer commuting.

[00:14:20] Speaker 00:
That's the November 30 email at appendix 3988.

[00:14:23] Speaker 00:
And as the court noted, this was going on in the backdrop of the IRS's return to work implementation of the return to work order in June of 2022 and the August 2022 enactment of the Inflation Reduction Act, which provided approximately $80 billion in additional funding.

[00:14:42] Speaker 03:
So what do you do with the emails on the record that demonstrate that at least

[00:14:47] Speaker 03:
A few different employees in the IRS were quite dissatisfied with the contract and didn't want it awarded.

[00:14:53] Speaker 00:
Well, the trial court thoroughly analyzed those emails.

[00:14:58] Speaker 00:
The trial court allowed supplementation of administrative record with certain emails that Bear Mountainside had presented and thoroughly analyzed and looked at those emails and determined, yes, there was some evidence that some of the folks may have certainly disliked the Mountainside building and may have had some improper motives in wanting to not be there.

[00:15:22] Speaker 00:
But ultimately,

[00:15:23] Speaker 00:
mountainside failed to demonstrate by clear and convincing evidence, the inferences from those emails didn't lead to the conclusion by clear and convincing evidence that the cancellation was pretextual.

[00:15:34] Speaker 00:
I mean, these are plainly... Is that the issue?

[00:15:36] Speaker 03:
I mean, I was a little confused by the terminology that's been thrown around in this case, because you just used the word improper motives.

[00:15:45] Speaker 03:
I mean, if employees have complaints about where they're working,

[00:15:50] Speaker 03:
Is it an improper motive because it's not the reason that the IRS and the GSA gave?

[00:15:58] Speaker 03:
Is that what makes it improper?

[00:16:00] Speaker 03:
Because it was, as you said, it was hiding the ball.

[00:16:07] Speaker 03:
Because it's not itself, in and of itself, it's not improper for certain employees working in a

[00:16:13] Speaker 03:
facility to have complaints about that facility.

[00:16:17] Speaker 03:
That by itself isn't improper.

[00:16:18] Speaker 03:
So what makes it improper?

[00:16:20] Speaker 03:
The fact that they used a subterfuge for that, and they allegedly made up all these other reasons other than the complaints of the IRS examiner people.

[00:16:31] Speaker 00:
Right, absolutely.

[00:16:32] Speaker 00:
I mean, there's nothing wrong with employees of an agency not liking the building they're in or complaining to their supervisors or even GSA about it.

[00:16:42] Speaker 00:
If the agency were to create a reason for canceling that's simply not true to hide

[00:16:52] Speaker 00:
a desire simply to injure the plaintiff.

[00:16:54] Speaker 00:
I mean, specific intent to injure.

[00:16:56] Speaker 00:
That's a standard we have here.

[00:16:58] Speaker 00:
I mean, that could be improper motives.

[00:17:01] Speaker 00:
I don't think we have that evidence here of even lower level employees specifically wanting to injure bare mountainside here.

[00:17:12] Speaker 00:
As trial courts certainly found, there was evidence that certain employees didn't want to be in the mountainside building.

[00:17:18] Speaker 03:
So is the problem with that, though, that that was not the rationale that was used by the agency when it terminated the cancellation?

[00:17:25] Speaker 03:
Now, that would be a problem, right?

[00:17:28] Speaker 03:
As a subterfuge for employees.

[00:17:31] Speaker 03:
Employees didn't like it, but you didn't cancel it because employees didn't like it, and it wasn't an adequate facility.

[00:17:37] Speaker 03:
You canceled it ostensibly for these other reasons, right?

[00:17:40] Speaker 03:
So that's what would make it improper.

[00:17:43] Speaker 00:
Right.

[00:17:44] Speaker 00:
If the reasons that were given, a desire to move to this more desirable location in Isla, New Jersey, the potential for new hires coming in, if those weren't the actual reasons for the cancellation, then yes, that could potentially be improper.

[00:18:00] Speaker 00:
But nevertheless, in that case, as the GAO found, in the case, there's still rational bases for the cancellation, even if there were pre-tax.

[00:18:08] Speaker 00:
The agency still had a rational basis here.

[00:18:12] Speaker 00:
There's no dispute here that it is when New Jersey is on the Northeast corridor.

[00:18:18] Speaker 00:
I don't think the plaintiff has disputed that it's an ideal.

[00:18:21] Speaker 02:
How would you address J.A.

[00:18:23] Speaker 02:
80?

[00:18:23] Speaker 02:
That was the one that your opposing counsel specifically identified as his best evidence of pretext.

[00:18:32] Speaker 00:
Right.

[00:18:33] Speaker 00:
And the trial court addressed that email in its decision.

[00:18:37] Speaker 00:
It thoroughly analyzed it.

[00:18:39] Speaker 00:
And in that email, Mr. Mounted said, due to lesser.

[00:18:42] Speaker 00:
Do you have the page number?

[00:18:43] Speaker 00:
Yeah, appendix 80, yes.

[00:18:47] Speaker 03:
What's the page for the court of claim's opinion?

[00:18:49] Speaker 00:
Oh, that would be a 15 to 16, I believe.

[00:18:58] Speaker 01:
What was that again?

[00:19:00] Speaker 00:
Appendix 15 through 16 is where the court addresses this email.

[00:19:08] Speaker 00:
So Mr. Mount had said, due to lesser issues in Mountainside and GSA reluctance to engage with lesser threats of filing grievance actions against them, the strategy is changing for the Springfield Mountainside locations.

[00:19:20] Speaker 00:
And the trial court correctly determined that contrary to plaintiff's implicit, this is an appendix, page 15, contrary to plaintiff's implicit suggestion, Mr. Mount's use of the word strategy is not inherently indicative of some malicious intent.

[00:19:34] Speaker 00:
And the trial court found that Mr. Mount's email was susceptible to multiple interpretations at appendix page 16.

[00:19:42] Speaker 00:
So while perhaps it could lead to an inference of improper motives, the trial court also stated that Mr. Mount, having already determined that there was a need to reevaluate the IRS's space needs in the area, was explaining how the IRS's approach to the procurement would be changing to minimize the risk of litigation by seeking to leave the mountainside and Springfield offices entirely.

[00:20:05] Speaker 01:
If there's various ways or various methods by which

[00:20:11] Speaker 01:
this evidence of cancellation can be examined, you know, different outcomes, depending on how you interpret it.

[00:20:18] Speaker 01:
She can provide the basis for allowing discovery in order to get a robust record and decide that issue?

[00:20:27] Speaker 00:
And the trial court did allow discovery here.

[00:20:29] Speaker 00:
It allowed Bear Mountain Side to recount certain interrogatories that it had requested to the IRS.

[00:20:38] Speaker 00:
And so that, they,

[00:20:40] Speaker 00:
This was one of the unusual cases where the trial court did supplement the administrative record, both with documents provided by Bear Mountain Side, as well as interrogatories from the agency.

[00:20:53] Speaker 00:
And for all the reasons we stated in our brief that I can go into if there's particular questions, the trial court didn't abuse its discretion in denying the remaining requests that Bear Mountain Side had made.

[00:21:06] Speaker 03:
Well, they wanted to depose a lot of people.

[00:21:09] Speaker 00:
Right.

[00:21:09] Speaker 00:
I mean, they wanted to depose the GSA contracting officer when there was no allegation of bad faith on the part of GSA and no demonstration that GSA even suspected that there was anything amiss in this request.

[00:21:24] Speaker 03:
So let me just take you to where we started, which was what your friend is seeking in terms of a remedy.

[00:21:30] Speaker 03:
So I don't know if it's in the record.

[00:21:32] Speaker 03:
I don't want to go outside of the record.

[00:21:33] Speaker 03:
What's going on now?

[00:21:35] Speaker 03:
Whatever happened?

[00:21:36] Speaker 03:
You had three facilities.

[00:21:38] Speaker 03:
and you're bringing people back from COVID, then you rely a lot on you got all this money from the Inflation Reduction Act to supplement it, which I think has been pretty much clawed back by Congress by now.

[00:21:51] Speaker 03:
So what's the current play with respect to these facilities?

[00:21:54] Speaker 00:
So the current status in terms of the actual operations, the folks are at the Springfield facility.

[00:22:02] Speaker 00:
A solicitation was issued in December 2024.

[00:22:06] Speaker 00:
Two solicitations actually were issued in December 2024.

[00:22:10] Speaker 00:
One for the Islin area and another for the Kenilworth area, which is a little bit closer to the Springfield mountainside location, but they're not within

[00:22:20] Speaker 00:
that delineated area.

[00:22:22] Speaker 00:
And so those two procurements are ongoing.

[00:22:26] Speaker 00:
The agency's received offers.

[00:22:28] Speaker 00:
It's evaluating those offers and expects to issue requests for final proposal revisions in the near future.

[00:22:37] Speaker 03:
The other lease is terminated now, and the employees have moved out of the facility?

[00:22:42] Speaker 00:
Yeah, the Mountainside lease expired after about 11 years of extensions.

[00:22:47] Speaker 00:
The Mountainside lease expired in September 2023.

[00:22:49] Speaker 00:
And so those people moved to Springfield, I believe.

[00:22:55] Speaker 00:
And that lease is scheduled to expire in February 2016 at this time, though.

[00:23:01] Speaker 00:
That may require an extension.

[00:23:03] Speaker 03:
You said February 6.

[00:23:03] Speaker 00:
I'm sorry, February 2026 is what I meant.

[00:23:07] Speaker 00:
But I mean, that may require an extension based on where the status of the procurement is.

[00:23:13] Speaker 00:
I expect it will.

[00:23:14] Speaker 03:
Wait, so Mountainside still has employees working there?

[00:23:18] Speaker 00:
No.

[00:23:19] Speaker 00:
Oh, I'm sorry.

[00:23:20] Speaker 00:
No, I'm sorry.

[00:23:20] Speaker 00:
That was Springfield.

[00:23:21] Speaker 00:
Oh, Springfield.

[00:23:22] Speaker 00:
OK.

[00:23:22] Speaker 00:
Yeah, so Springfield is still ongoing.

[00:23:25] Speaker 00:
Current lease expires February 2026, likely maybe a year extension to allow for the build out of the new facilities and that sort of thing.

[00:23:34] Speaker 00:
But that's where we're at right now in terms of what relief the plan is seeking.

[00:23:39] Speaker 00:
I don't know what it could get at this time.

[00:23:43] Speaker 00:
If there were a reversal, I suppose that would be for the trial court, likely to figure out.

[00:23:48] Speaker 00:
But for all the reasons we stated,

[00:23:52] Speaker 00:
This trial court's judgment should not be reversed.

[00:23:55] Speaker 00:
It should be affirmed.

[00:23:58] Speaker 03:
Thank you.

[00:24:03] Speaker 03:
Thank you.

[00:24:03] Speaker 03:
Will we still have two minutes?

[00:24:14] Speaker 04:
Your Honor, I apologize.

[00:24:15] Speaker 04:
I gave you the wrong site.

[00:24:18] Speaker 04:
Appendix 80, not 90.

[00:24:20] Speaker 04:
I had it.

[00:24:22] Speaker 02:
Appendix 8-0, right?

[00:24:23] Speaker 04:
It's appendix number 8-0.

[00:24:24] Speaker 02:
Yes.

[00:24:25] Speaker 04:
OK.

[00:24:25] Speaker 04:
8-0.

[00:24:25] Speaker 04:
I had said 9-0 because my notes.

[00:24:27] Speaker 04:
So we heard 8-0.

[00:24:28] Speaker 02:
We heard 8-0.

[00:24:29] Speaker 02:
Yes.

[00:24:29] Speaker 02:
Oh, OK.

[00:24:30] Speaker 02:
That's the one we talked to mostly, counsel, was 8-0.

[00:24:32] Speaker 04:
So briefly,

[00:24:34] Speaker 04:
Who knows what will happen with Springfield?

[00:24:36] Speaker 04:
They're still there.

[00:24:38] Speaker 04:
They moved everybody to Springfield, which was always their plan anyway.

[00:24:42] Speaker 04:
And they shut down Mountainside, which was always their plan.

[00:24:46] Speaker 04:
Had there been any issues with respect to the adequacy of the building?

[00:24:51] Speaker 04:
That would have been addressed by GSA.

[00:24:52] Speaker 04:
There were no problems or deficiencies with the building.

[00:24:55] Speaker 04:
The records, the reports that they produced indicated.

[00:24:59] Speaker 03:
But it's legitimate for an agency to decide on location in terms of the convenience of employees and the access to certain types of facilities.

[00:25:07] Speaker 04:
Of course.

[00:25:08] Speaker 04:
Of course.

[00:25:08] Speaker 04:
And they have an obligation to make sure that the facility is adequate.

[00:25:11] Speaker 04:
I just didn't want.

[00:25:13] Speaker 04:
We're not saying that people can't express their view that they don't like the building.

[00:25:17] Speaker 04:
But if the building meets the requirements and is the lowest bid and the GSA has decided to award to the lowest bidder, it's improper to engage in a subterfuge to prevent award.

[00:25:29] Speaker 04:
And one of the important things I think that the court has to consider here is we weren't allowed to have any discovery.

[00:25:35] Speaker 04:
We weren't allowed to ask Mr. Mount what he meant.

[00:25:38] Speaker 04:
when he said, quote, due to lesser issues in Mountainside and GSA reluctance to engage.

[00:25:43] Speaker 03:
But you said you weren't allowed to do discovery.

[00:25:45] Speaker 03:
You were allowed discovery.

[00:25:46] Speaker 03:
You're saying you weren't allowed deposition.

[00:25:48] Speaker 04:
Well, we were allowed interrogatories that said, did you cancel the lease for an improper purpose?

[00:25:53] Speaker 04:
Answer, no.

[00:25:56] Speaker 04:
Tell us when this arrived, when this issue, when did the change circumstances arrive, come up?

[00:26:03] Speaker 04:
In these answers, they never said, oh, at this meeting, or here's the document.

[00:26:07] Speaker 04:
They just said, well, generally, in June of 2022, people were coming back from COVID.

[00:26:12] Speaker 04:
And oh, generally, there was an irony.

[00:26:14] Speaker 04:
They just made these general statements without identifying any meetings, any notes, any contemporaneous evidence.

[00:26:21] Speaker 04:
And of course, what do you expect people to say in an interrogatory?

[00:26:26] Speaker 04:
Yes, we did single out Bear Mountainside and cancel their solicitation because we didn't want them to get it.

[00:26:34] Speaker 04:
They're never going to say that.

[00:26:36] Speaker 04:
I mean, in a deposition, at least, you would have been able to go to Fitzpatrick, the GSA officer, and say, tell me about the September 27 meeting.

[00:26:45] Speaker 04:
Why did you cancel this?

[00:26:47] Speaker 04:
Why did you demand reasons for the cancellation after they had given them to you?

[00:26:51] Speaker 04:
And you all can read this email as well as the judge below.

[00:26:57] Speaker 04:
The idea that the word strategy doesn't have any implicitly negative association with it, the plain words of what he's saying is, we're doing the strategy, we're changing it.

[00:27:12] Speaker 04:
because of lesser issues in Mountainside and refusal of GSA to engage.

[00:27:18] Speaker 04:
He's saying it in black and white.

[00:27:20] Speaker 04:
So when you don't even have discovery, they didn't even give us this email.

[00:27:24] Speaker 04:
I had to go find this email through a FOIA request.

[00:27:27] Speaker 04:
How are bid protesters supposed to be able to show that big with no discovery?

[00:27:32] Speaker 04:
And the standard is highly probable.

[00:27:36] Speaker 04:
Let me ask you this.

[00:27:37] Speaker 04:
If PSA had said, we're awarding this to Springfield,

[00:27:42] Speaker 04:
Does anybody doubt that they would have gone forward with that bid award?

[00:27:49] Speaker 03:
I mean, it's.

[00:27:49] Speaker 03:
We need to remiss your clothes.

[00:27:51] Speaker 04:
So the standard is an irrefutable evidence of admissions by wrongdoers.

[00:27:58] Speaker 04:
The standard can't be that high.

[00:28:01] Speaker 04:
The standard is only highly probable.

[00:28:04] Speaker 04:
And when you look at the whole history here of trying to exclude Bear Mountainside,

[00:28:10] Speaker 04:
Keep in mind, Springfield was never subjected to a competitive bid.

[00:28:14] Speaker 04:
It was always hand-selected.

[00:28:17] Speaker 04:
And throughout this equit of trying to get religion.

[00:28:20] Speaker 03:
OK, we need to bring this to an end.

[00:28:22] Speaker 04:
OK.

[00:28:23] Speaker 03:
Thank you, Your Honor.

[00:28:24] Speaker 04:
I just think that my final word is just the combination of the lack of any evidentiary record and the lack of discovery

[00:28:31] Speaker 04:
coupled with the extraordinarily high burden of essentially requiring admissions from people engaged in the misconduct sets a standard that's just impossible for anybody to meet.

[00:28:41] Speaker 03:
Thank you.

[00:28:42] Speaker 03:
We thank both sides.

[00:28:43] Speaker 03:
The case is amended.