[00:00:00] Speaker 03:
20-1924 NECA Technologies versus the United States.

[00:00:06] Speaker 03:
And we've got only the government arguing this morning on the side of the appellant or petitioner.

[00:00:12] Speaker 03:
Please proceed.

[00:00:15] Speaker 00:
May it please the court?

[00:00:17] Speaker 00:
In this case, NECA Technologies appealed to the GAO six days after its debriefing and sought a procurement stay.

[00:00:26] Speaker 00:
The statutory deadline was five days.

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The trial court aired by issuing an injunction to put in force the procurement stay.

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The court's ruling is inconsistent.

[00:00:39] Speaker 01:
Council, the written debriefing stated that the government will consider the debriefing closed if additional questions are not received within two business days.

[00:00:52] Speaker 01:
And thus, the briefing wasn't closed until then.

[00:00:59] Speaker 01:
And then the government said it would respond within five days.

[00:01:03] Speaker 01:
And that obviously was so that there could be an appeal within that time.

[00:01:10] Speaker 01:
So why wasn't the time extended so that they met the deadline?

[00:01:17] Speaker 00:
The point was raised and abandoned in front of the trial court, essentially, Your Honor.

[00:01:27] Speaker 00:
the argument is reduced to one of equitable tolling.

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In other words, the statute of limitations is not jurisdictional.

[00:01:37] Speaker 00:
Equitable tolling is available, but the standards for equitable tolling are very strict.

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And in fact, after we pointed out how strict the standard was in our initial brief, NECA Technologies denied that they were even seeking equitable tolling.

[00:01:57] Speaker 00:
But that issue, while interesting and substantial, I guess, sort of washed out of the case.

[00:02:04] Speaker 00:
And the trial court did not rely on it or even really address it.

[00:02:10] Speaker 03:
Yeah, I'm not clear.

[00:02:11] Speaker 03:
I have the same question that Judge Laurie had.

[00:02:14] Speaker 03:
This is Judge Prost.

[00:02:16] Speaker 03:
And I'm not quite clear on what you're telling us.

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I mean, this is the government's own debriefing letter.

[00:02:23] Speaker 03:
Wouldn't you at least agree that this language isn't perfectly clear and creates some lack of clarity, at least, in terms of the statutory deadlines?

[00:02:36] Speaker 03:
I mean, the government presumably has authority to stop using that, but as much as it did in this case, does it not create some ambiguity?

[00:02:46] Speaker 00:
I think that there was a certain amount of consternation when the letter first surfaced, and I think there were just

[00:02:53] Speaker 00:
people talking about how to write it more clearly.

[00:02:56] Speaker 00:
However, and I think that has happened.

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However, in the same paragraph, there's an express reference to the class deviation 0011, which is that page 14 of the appendix.

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And the class deviation clearly says that the deadline is five days.

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if no questions are submitted.

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And certainly NECA could take a look at that class deviation if they had any confusion on this point.

[00:03:33] Speaker 00:
But the bigger point is, even though it's unfortunate perhaps the way that the letter was written, is that the framework is first, what does the statute say?

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What are the deadlines that Congress has put in place?

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And what is put into that letter doesn't really affect the interpretation of the statute.

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And that's the main point of the decision below.

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The trial court is purporting to set a standard that will be broadly observed in JAL proceedings.

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And so the reason for...

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bringing our appeals to try to have the statute enforced according to its plain meaning.

[00:04:24] Speaker 00:
In the context of this particular... Mr. Poirier, this is such use.

[00:04:28] Speaker 02:
Can I just interrupt a minute?

[00:04:30] Speaker 02:
I mean, even if we were going to look at the kind of ambiguous, perhaps misleading language in that letter and rely on it as giving additional time to the contractor in this case,

[00:04:44] Speaker 02:
Hasn't the contractor already essentially gotten all that he would have gotten under that kind of equitable polling reading because he did get the stay and the like?

[00:04:56] Speaker 02:
I guess what I'm getting at is that your appeal here is to get us to interpret the language of the statute as a matter of law on the language and not on specific factual context, right?

[00:05:11] Speaker 00:
That is the significance, I think, of the appeal.

[00:05:17] Speaker 00:
But I also think that we have good grounds for opposing any reliance on the letter.

[00:05:25] Speaker 00:
First of all, its significance is only in terms of equitable tolling, and they cannot demonstrate equitable tolling even with that letter.

[00:05:38] Speaker 00:
And furthermore,

[00:05:40] Speaker 00:
to the extent that NECA wanted to rely on some grounds other than what was in the opinion, perhaps NECA would have been entitled to do that had they raised it on appeal in their brief.

[00:05:55] Speaker 00:
But having decided not to participate and not raised it in the brief, I think the matter is waived under the precedence of this court.

[00:06:04] Speaker 02:
Well, I guess what I'm getting at, because, you know, obviously they didn't participate because they didn't have any reason to participate and support this, is if we're going to agree with you that this case is not moot because of the, you know, capable of evading review issue here, isn't it because the statutory issue needs to be decided, not a case-specific equitable tolling issue?

[00:06:31] Speaker 00:
Well, I think that's absolutely the case.

[00:06:34] Speaker 02:
And I think... And if we were going to agree that equitable tolling could have applied here based on the misleading letter and that that could have been a basis for the trial court's decision, it doesn't seem like we should be using our authority under the capable of abating review, except in the mootness.

[00:06:58] Speaker 00:
I also agree with that.

[00:07:00] Speaker 00:
And what I would like to add is that

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In this area, in terms of the deadlines applicable to bid protest and going to the JO and getting a stay, Congress has indicated a great interest in the area and has taken great pains to be very precise in what the rules should be, what the deadline should be, and the consequences are fairly dramatic in this case.

[00:07:31] Speaker 00:
The agency was seeking to procure maintenance facilities and healthcare facilities in the course of a pandemic.

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And the agency was able to do various workarounds.

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But nonetheless, in this case and in many cases, the application of the procurement stay has very serious and significant consequences.

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And so Congress has put in place

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very strict sets of deadlines and has given very careful attention to exactly what the rules should be.

[00:08:09] Speaker 00:
In this case, Congress in Section 818 created a very specific right, very specific remedy, and went to the trouble of establishing a very specific extension to the time available to seek a procurement stay.

[00:08:30] Speaker 02:
Can I just clarify one thing?

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If they had asked for or if they had had supplemental questions within two days after the briefing and the government had followed up and given answers, would the five-day period run from those answers, not the original briefing?

[00:08:51] Speaker 00:
Right.

[00:08:52] Speaker 00:
Pursuant to Section 3553D4B, which is the new section that was created

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The five days run from the date that the questions are, the written answers to the questions rather, are given to the protester.

[00:09:12] Speaker 00:
So in other words, under the statute, the agency has five days to provide the written answer, but if they provide the written answer on the second day, then the five days to seek a stay runs from that second day when the answer is provided.

[00:09:30] Speaker 00:
So it's a very simple rule.

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Once the written answers from the agency are given to the protester, then that five days begins to run from then.

[00:09:43] Speaker 00:
And there's other aspects of the Section 818.

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If you take a look at it, they're not really implicated in this case, but the first section, which is on page 11 of the appendix,

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goes into when the exact procurement decision needs to be produced to a protester and then what dollar amounts.

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What I draw from that is that Congress has been very fastidious in crafting very precise rules and very precise deadlines for these debriefings and for the right to

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invoke a procurement stay at the GAO.

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These are sensitive matters, and the rules should be enforced as written.

[00:10:37] Speaker 00:
And frankly, the statute is fairly easy to construe, and I don't think that the plain meaning is difficult to discern.

[00:10:48] Speaker 00:
And certainly, the Department of Defense in drafting a class deviation,

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largely parrots the statute.

[00:10:59] Speaker 00:
In an almost offhand manner, they point out that if there's no written questions submitted, then the five days run from the briefing date offered.

[00:11:12] Speaker 03:
Anything further?

[00:11:14] Speaker 00:
I think I've actually covered most of the main points, Your Honor.

[00:11:19] Speaker 00:
And we'd like to respectfully request that the decision below be reversed.

[00:11:26] Speaker 03:
Okay.

[00:11:27] Speaker 03:
Thank you.

[00:11:27] Speaker 03:
And the case is submitted.

[00:11:30] Speaker 03:
That concludes our proceeding for this morning.

[00:11:34] Speaker 03:
Thank you.

[00:11:37] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.