Case: 20-1924 Document: 15 Page: 1 Filed: 02/04/2021
United States Court of Appeals
for the Federal Circuit
______________________
NIKA TECHNOLOGIES, INC.,
Plaintiff
v.
UNITED STATES,
Defendant-Appellant
______________________
2020-1924
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00299-CFL, Senior Judge Charles F. Lettow.
______________________
Decided: February 4, 2021
______________________
JAMES WILLIAM POIRIER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellant.
Also represented by JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE.
______________________
Before PROST, Chief Judge, LOURIE and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Bid protests filed at the Government Accountability Of-
fice within five days of debriefing invoke an automatic stay
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2 NIKA TECHNOLOGIES, INC. v. UNITED STATES
of performance of the underlying contract under
31 U.S.C.
§ 3553(d). NIKA Technologies, Inc. filed a bid protest at the
GAO six days after receiving a written debriefing regard-
ing its failed bid on a government contract, but the GAO
denied an automatic stay as untimely. NIKA filed an action
at the Court of Federal Claims, which instituted the stay.
The government appeals. Because we hold that the plain
language of
31 U.S.C. § 3553(d) dictates that the deadline
for invoking the automatic stay is five days after the writ-
ten debriefing is supplied (unless, as discussed below, the
protestor submits additional questions), we reverse.
I
The Army Corps of Engineers issued a request for pro-
posals seeking services for its Operation and Maintenance
Engineering and Enhancement Program. NIKA bid but
was not awarded a contract, so the Corps alerted NIKA to
its right to request a debriefing. NIKA made a timely re-
quest for debriefing. On March 4, 2020, the Corps sent
NIKA a written debriefing and alerted NIKA of the right
to submit additional questions. NIKA did not submit any
additional questions. NIKA filed a protest at the GAO on
March 10—six days after the written debriefing.
Under
31 U.S.C. § 3553(d), bid protests filed at the
GAO invoke an automatic stay of procurement during the
pendency of the protest if the federal agency awarding the
contract receives notice within five days of debriefing. But
here, the GAO denied the stay as untimely because NIKA
did not file its protest with the GAO until six days after
receiving a written debriefing.
NIKA then filed an action at the Court of Federal
Claims on the theory that, although the debriefing period
began upon receipt of the written debriefing, debriefing did
not end until two days later. NIKA cited
10 U.S.C.
§ 2305(b)(5)(B)(vii), which states that “[t]he debriefing
shall include . . . an opportunity for a disappointed offeror
to submit, within two business days after receiving a post-
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NIKA TECHNOLOGIES, INC. v. UNITED STATES 3
award debriefing, additional questions related to the de-
briefing.” The Court of Federal Claims sided with NIKA
and instituted the stay.
Since that time, the bid protest has concluded, which
means that the stay has also ended. Thus, although the
government appeals, NIKA no longer has an interest in
the case and has not responded.
II
As a threshold matter, we address whether the case is
moot.
The order that the government challenges expired on
June 5, 2020. J.A. 1. Thus, any decision from this court
would not directly affect the parties, which presents moot-
ness concerns. See DeFunis v. Odegaard,
416 U.S. 312, 317
(1974) (citations omitted) (noting that when a case “no
longer ‘touch(es) the legal relations of parties having ad-
verse legal interests’” it is generally moot).
However, there is an exception to the mootness doc-
trine for cases capable of repetition but evading review.
“That exception applies ‘only in exceptional situations,’
where (1) ‘the challenged action [is] in its duration too short
to be fully litigated prior to cessation or expiration,’ and
(2) ‘there [is] a reasonable expectation that the same com-
plaining party [will] be subject to the same action again.’”
Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969,
1976 (2016) (quoting Spencer v. Kemna,
523 U.S. 1, 17
(1998)). We address these two prongs below.
A
Because of the legal time constraints, this is an issue
that is evading review. Some cases are inherently unlikely
to get through the judicial-review process before they
would become moot. Here, by statute, GAO bid protests
must be decided within 100 days of submission.
31 U.S.C.
§ 3554(a)(1). By regulation, the GAO does not decide
Case: 20-1924 Document: 15 Page: 4 Filed: 02/04/2021
4 NIKA TECHNOLOGIES, INC. v. UNITED STATES
disputes about the stay of procurement activities.
4 C.F.R.
§ 21.6. Therefore, in order to receive judicial review regard-
ing a GAO stay of procurement activities, a party has at
most 100 days for proceedings at the Court of Federal
Claims (concerning whether a protest at the GAO was filed
in time for the protester to invoke the stay), for the United
States to get permission to appeal, for the United States to
file an appeal with this court, and for this court to consider
and decide the case. Completing all these activities in 100
days is unrealistic, if not impossible. Therefore, this issue
is evading review. See, e.g., Kingdomware Techs., Inc., 136
S. Ct. at 1976 (2016) (holding that an issue was evading
review because there were only two years to complete judi-
cial review before the case would be rendered moot).
B
This issue is also capable of repetition. “[T]he capable-
of-repetition doctrine applies… generally only where the
named plaintiff can make a reasonable showing that he
will again be subjected to the alleged illegality.” City of Los
Angeles v. Lyons,
461 U.S. 95, 109 (1983). In other words,
we must decide whether there is a reasonable expectation
that the party invoking review here will run into this same
problem again. See Kingdomware Techs, Inc., 136 S. Ct. at
1976. The question is “whether the controversy [is] capable
of repetition and not . . . whether the claimant [has] demon-
strated that a recurrence of the dispute was more probable
than not.” Honig v. Doe,
484 U.S. 305, 318 n.6 (1988) (em-
phasis added). Here, there is a “reasonable expectation
that” the government “[will] be subject to the same action
again” because it is likely that future bid protestors will
rely on the Court of Federal Claims’ decision below and
wait beyond the deadline to invoke a stay of procurement.
See Kingdomware Techs., Inc., 136 S. Ct. at 1976 (altera-
tion in original). In 2019, there were 2,198 bid protests at
the GAO, many of which involved potential stays on pro-
curement. U.S. Gov’t Accountability Off., GAO-20-220SP,
GAO Bid Protest Annual Report to Congress for Fiscal
Case: 20-1924 Document: 15 Page: 5 Filed: 02/04/2021
NIKA TECHNOLOGIES, INC. v. UNITED STATES 5
Year 2019 (2019). The government will be involved in all
future bid protests, and there is a reasonable expectation
that the deadline will be missed by future bid protestors,
given the number of protests and the short timeline for pro-
tests.
We hold that this issue is capable of repetition but
evading review and therefore consider the merits.
III
One statutory incentive for bid protestors to file claims
at the GAO rather than the Court of Federal Claims is that
a bid protester is entitled to invoke a stay on procurement
for the duration of the GAO proceedings. To invoke this
stay, the protester must file at the GAO quickly, before one
of two deadlines: within ten days of the contract award or
within five days of the debriefing date offered for a required
debriefing. These deadlines are codified in
31 U.S.C.
§ 3553(d), the statute at issue here, which we reproduce in
part below:
(3)(A) If the Federal agency awarding the contract
receives notice of a protest in accordance with this
section during the period described in paragraph
(4)—
(i) the contracting officer may not authorize
performance of the contract to begin while
the protest is pending;
...
(4)(A) The period referred to in . . . (3)(A), with re-
spect to a contract, is the period beginning on the
date of the contract award and ending on the later
of—
(i) the date that is 10 days after the date of
the contract award; or
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6 NIKA TECHNOLOGIES, INC. v. UNITED STATES
(ii) the date that is 5 days after the debrief-
ing date offered to an unsuccessful offeror
for any debriefing that is requested and,
when requested, is required.
31 U.S.C. § 3553(d). Here, it is undisputed that NIKA
missed the first deadline (ten days after the contract
award), so the issue is the meaning of § 3553(d)(4)(A)(ii):
“the date that is 5 days after the debriefing date. . .”
IV
We hold that the plain meaning of the statute is that
the deadline in
31 U.S.C. § 3553(d)(4)(A)(ii) is five days af-
ter receipt of debriefing. In other words, we hold that the
debriefing is not automatically held open for an additional
two days.
The plain meaning of § 3553(d)(4)(A)(ii) is that the
clock starts on the day that the bidder receives debriefing.
The statute refers to “the debriefing date,” using the singu-
lar form of the noun. § 3553(d)(4)(A)(ii) (emphasis added).
If Congress thought otherwise, it could have said “the end
of the debriefing period,” but instead it said “the debriefing
date.” This indicates that the proper interpretation is that
the timer starts on the day that a bidder receives its de-
briefing, not two days afterward. It would be at odds with
the plain meaning to interpret the statute to define “the
debriefing date” as a day on which no actual debriefing oc-
curred.
Nevertheless, the Court of Federal Claims held that
10 U.S.C. § 2305(b)(5)(B)(vii) defines the term “debriefing”
when it says: “The debriefing shall include . . . an oppor-
tunity for a disappointed offeror to submit, within two busi-
ness days after receiving a post-award debriefing,
additional questions related to the debriefing. . . .” J.A. 5–
6. The court emphasized the language “shall include,” and
held that the statute therefore mandated that the debrief-
ing last until this two-day window ends. J.A. 6. But this
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NIKA TECHNOLOGIES, INC. v. UNITED STATES 7
interpretation overlooks the word “after.” While the statute
mandates a two-day opportunity to ask questions, it man-
dates it “after… debriefing,” which means that the two-day
period for questions occurs within the five-day window for
filing a protest.
10 U.S.C. § 2305(b)(5)(B)(vii) (emphasis
added).
Moreover, when Congress has wanted to extend the
deadline in this statutory scheme, it has done so explicitly.
For example, § 2305(b)(5)(C) states that when there are ad-
ditional questions submitted “[t]he agency shall not con-
sider the debriefing to be concluded until the agency
delivers its written responses. . . .” By implication, when
there are no additional questions submitted, as here, the
debriefing period is not held open. 1
We hold that the plain meaning of the statutory
scheme is that when no additional questions are submitted,
the “debriefing date” is simply the date upon which the
party receives its debriefing. The five-day period described
in subparagraph (A)(ii) begins on the debriefing date, ra-
ther than two days later. Because NIKA did not file at the
GAO within the five-day period, it did not timely invoke the
stay.
1 Similarly,
31 U.S.C. § 3553(d)(4)(B) states: “For
procurements conducted by any component of the Depart-
ment of Defense, the 5-day period described in subpara-
graph (A)(ii) does not commence until the day the
Government delivers to a disappointed offeror the written
responses to any questions submitted pursuant to section
2305(b)(5)(B)(vii) of title 10.” This section also emphasizes
that when additional questions are submitted, the deadline
is extended, which implies that the deadline is generally
not extended.
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8 NIKA TECHNOLOGIES, INC. v. UNITED STATES
V
Because NIKA did not supply notice of its protest at the
GAO within five days of receiving its debriefing, we hold
that it did not meet the deadline of
31 U.S.C.
§ 3553(d)(4)(A)(ii) for invoking the stay. Accordingly, we re-
verse the decision of the Court of Federal Claims.
REVERSED
No costs.
