[00:00:00] Speaker 03:
20-1175, veterans for you versus the United States.

[00:00:04] Speaker 03:
We are now reading Ms.

[00:00:06] Speaker 03:
Rada.

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

[00:00:09] Speaker 01:
May it please the court, my name is Sarah Rada and I represent Veterans for You LLC, the plaintiff's appellate in this appeal, which requests the reversal of the final judgment entered on September 25th, 2019 by the United States Court of Federal Plains.

[00:00:23] Speaker 01:
This case arose as a bid protest action challenging the invocation of the printing mandate.

[00:00:28] Speaker 01:
throughout the Department of Veterans Affairs Ferturement for Imprinted Veterans Suicide Prevention Gun Logs to include two C's and printed wallet cards to the Government Publishing Office or GPO.

[00:00:38] Speaker 01:
This appeal involves two primary issues which relates to interpretation and interaction of two statutes.

[00:00:44] Speaker 01:
The printing mandate of 44 U.S.D.

[00:00:46] Speaker 01:
501 and the Veterans Benefits Act of 38 U.S.D.

[00:00:48] Speaker 01:
8127 at sequence.

[00:00:52] Speaker 01:
First, the court of federal claims improperly held that the imprinted gun locks and wallet cards qualified as printing under the meaning of the printing mandate, which is a broad squeezing decision that opens the door for any acquisition with a minor element of printing to be conducted via the GPO.

[00:01:08] Speaker 01:
Second, the Court of Federal Claims erroneously concluded that because the solicitation was conducted by the GPO rather than the VA, the VA was not required to conduct a rule of two analysis under 38 USC 8127D and was instead subject only to 38 USC 8127I, which requires it to include BVA compliance language in its acquisition request, despite full knowledge that it would have no force or effect in this particular instance.

[00:01:37] Speaker 01:
I'll turn first to the printing argument.

[00:01:39] Speaker 01:
Now, first, the court erroneously found that the GPO was properly conducting the solicitation because the printing mandate wasn't vote.

[00:01:46] Speaker 01:
This is an error.

[00:01:48] Speaker 01:
This is that forcefully in Veterans For You's brief, the gun lock sought to be procured ultimately was the end item.

[00:01:57] Speaker 01:
Ultimately, the VA was seeking to acquire a gun lock, however, because there was a minor element of the sentencing involved.

[00:02:03] Speaker 04:
Ms.

[00:02:03] Speaker 04:
Rada?

[00:02:04] Speaker 04:
Ms.

[00:02:05] Speaker 04:
Rada, this is Judge Chen.

[00:02:09] Speaker 04:
I was wondering, what is your view on what an executive agency like the VA here should do when it's trying to get a kind of good kind of product that's mixed?

[00:02:25] Speaker 04:
in terms of there's some printing involved and then there's some product involved.

[00:02:31] Speaker 04:
And that's, you know, in a broad sense what we have here.

[00:02:35] Speaker 04:
We have a mixture of printing as well as product.

[00:02:40] Speaker 04:
How should an executive branch agency go about trying to decide in that kind of broad category of things whether it should go over to the GPO or not?

[00:02:53] Speaker 01:
Thank you, Your Honor.

[00:02:54] Speaker 01:
And I do believe that this question is central to the scale at hand because what we're looking at here is a product that is fairly common compared to other products that a government agency could see to obtain.

[00:03:07] Speaker 01:
So, for example, if you have a fire extinguisher, which would also come with instructions and the printing on the fire extinguisher itself, obviously that includes a mix of both printing elements and the items thought to be obtained.

[00:03:20] Speaker 01:
I think that the central inquiry at hand should be what that end product is as a whole, what that product is supposed to be doing.

[00:03:27] Speaker 01:
Because when it comes down to it, really any supplies thought to be obtained by any executive agency would be considered as having a mix of both printing components and a supply.

[00:03:38] Speaker 01:
And the end item should be what is considered when determining whether or not the printing mandate applies.

[00:03:45] Speaker 01:
Now, with respect to the kind of supply that you allude to in your question, Your Honor, where you have printing components that can be categorized as different from the non-printing components, there is nothing that would prevent an agency from deciding to procure the item separately.

[00:04:02] Speaker 01:
In this particular case, the VA made the conclusory statement that because of prior issues with obtaining separately, they were going to have the GPO obtain everything at the same time.

[00:04:14] Speaker 01:
However, there is nothing in the record to indicate A, what that prior difficulty was, or B, why there would have been such an issue with the VA obtaining all the products, the product as a whole itself.

[00:04:26] Speaker 01:
Another important interaction here is looking at the interplay of the federal acquisition regulation with the printing procurement regulation.

[00:04:33] Speaker 01:
Now, as we know, because the GPO is subject to the legislative branch requirements, it is applied, it is only subject to the printing procurement regulation.

[00:04:44] Speaker 01:
And that makes an important impact on these kinds of acquisition decisions because when you're obtaining a product, it has both printing elements and non-printing elements such as, and I give the example of life-saving products such as oxygen masks, fire extinguishers, because not only are these particularly important, but because they're similar to the gummock in the sense that the printed element is particularly important because you need to know how to function to use it.

[00:05:09] Speaker 01:
If these were to go through the printing office,

[00:05:12] Speaker 01:
the result is that the federal acquisition regulation and its robust requirements and provisions would not apply.

[00:05:19] Speaker 01:
So you would not have the Buy American Act applied to these acquisitions.

[00:05:24] Speaker 01:
You would not have the Trade Agreements Act and the other regulations that apply via the FAR.

[00:05:28] Speaker 01:
So when you're looking at an acquisition that includes both the printing elements and a non-printing element, first of all, the overarching purpose and

[00:05:38] Speaker 01:
in the item should be what is considered when determining which agencies should be procuring the item.

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And then second, if there is a possibility of obtaining them separately, then that is something that the agencies would be allowed to consider, keeping in mind the integrity of the item stock.

[00:05:55] Speaker 03:
Ms.

[00:05:55] Speaker 03:
Raida, this is Judge Clevenger.

[00:05:57] Speaker 03:
I've lost sight of exactly what it is you want us to write to get you a different result.

[00:06:06] Speaker 03:
You've argued that

[00:06:08] Speaker 03:
The great value of the product here is in the hardware and not in the printing, that this is basically a hardware contract.

[00:06:16] Speaker 03:
How are we supposed to deal with the mandate?

[00:06:22] Speaker 01:
The mandate, Your Honor, requires that printing and printing services should be obtained through the GPO.

[00:06:29] Speaker 03:
Okay.

[00:06:30] Speaker 03:
Well, stop right there.

[00:06:32] Speaker 03:
Did this contract require any printing?

[00:06:35] Speaker 03:
The answer is yes.

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And was that printing integral to and important to the production of the product?

[00:06:41] Speaker 03:
The answer is yes.

[00:06:43] Speaker 03:
And so would that necessarily constitute printing under the mandate?

[00:06:51] Speaker 01:
No, it would not, Your Honor.

[00:06:52] Speaker 01:
And without discounting the importance of it.

[00:06:55] Speaker 03:
Tell me why not.

[00:06:58] Speaker 01:
Because the message is not what is being sought to be procured.

[00:07:02] Speaker 01:
What is being sought to be procured is the gun lock.

[00:07:05] Speaker 03:
Okay, stop right there.

[00:07:07] Speaker 03:
That goes to the identification of the NICS code, correct?

[00:07:14] Speaker 01:
That is a relevant inquiry, but that's not really what it goes to.

[00:07:19] Speaker 03:
The contracting officer under 13 CFR 121.402, the contracting officer of the procuring agency here, GPO, is required to designate the NAICS.

[00:07:36] Speaker 01:
Yes, that's true.

[00:07:39] Speaker 03:
Is that correct?

[00:07:41] Speaker 03:
Yes, the contract, you know, the service... Yeah, and the same regulation says you're supposed to pick the NICS code that fits the relative value and importance of the components and the greatest percentage of the contract value.

[00:07:58] Speaker 01:
Yes, Your Honor.

[00:07:59] Speaker 03:
Right.

[00:07:59] Speaker 03:
So what happened here was the GPO made a mistake and picked the wrong code.

[00:08:07] Speaker 01:
In that sense, Your Honor, but you also have the instance of the tail wagging the dog.

[00:08:12] Speaker 03:
Let me just follow it through, because you actually protested the GPO selection of the printing in a ICS code.

[00:08:25] Speaker 03:
Yes, Your Honor.

[00:08:26] Speaker 03:
You lost on the ground that the Small Business Administration has no jurisdiction over what the GPO does.

[00:08:34] Speaker 03:
Yes, Your Honor.

[00:08:37] Speaker 03:
So how do you want us to correct?

[00:08:41] Speaker 03:
How do we correct the misdiagnosis of the NICS issue as a matter of law?

[00:08:49] Speaker 01:
Well, as mentioned earlier, Honor, this is a case of the tail wagging the dog.

[00:08:53] Speaker 01:
Because the VA had categorized this as printing.

[00:08:56] Speaker 01:
It merely acknowledged there is an element of printing.

[00:08:58] Speaker 01:
And therefore, the requisition goes to the GPO.

[00:09:01] Speaker 01:
The GPO said there's not a lot of printing.

[00:09:03] Speaker 01:
There is no analysis as to whether this was, in fact, the printing acquisition they just noted.

[00:09:07] Speaker 01:
There's some printing involved that goes to the GPO.

[00:09:11] Speaker 01:
Once the VA did that and took it out of the executive agency and put the acquisition to the GPO, it became no longer subject to the Small Business Act and the GPO as a legislative branch only had, I believe it was four or five NAICS codes to choose from under printing because it is the GPO, it is passed with printing services.

[00:09:32] Speaker 01:
So it did not do an analysis as to whether or not that was probably applied.

[00:09:37] Speaker 03:
Are you saying the Court of Federal Claims erred as a matter of law in not wrecking the NICS designation?

[00:09:49] Speaker 01:
I believe that, yes, it did, but I believe that the more important inquiry is that the NAICS code is an illustration in terms of how you properly categorize any particular acquisition.

[00:10:00] Speaker 01:
And the NAICS code, as you mentioned, Your Honor, is dependent on

[00:10:04] Speaker 01:
in large part, what the ultimate cost is of the item.

[00:10:07] Speaker 01:
What is the biggest component cost-wise?

[00:10:10] Speaker 01:
And in this particular instance, once, or not in this instance, but in any instance, once an acquisition goes to the Government Printing Office, the Government Printing Office is governed only by the Printing Procurement Regulations, and it only assists with acquisitions of printing and printed-related supplies with limited and only being able to choose among printing NAICS codes.

[00:10:33] Speaker 01:
What should have happened here is that when the VA had initially identified the need for gun locks, including a printed element, is it should have looked at the acquisition and determined whether or not it was printing.

[00:10:44] Speaker 01:
If it was not printing, if ultimately the item sought to be obtained was a gun lock, then it never should have gone to the GPO in the first place.

[00:10:52] Speaker 01:
In this particular instance, in support of... Okay.

[00:10:56] Speaker 03:
Can I ask one more question?

[00:10:58] Speaker 01:
Yes, of course.

[00:10:59] Speaker 03:
If you don't mind, Judge Clever.

[00:11:02] Speaker 03:
Your amicus curiae says that for this case, for the GPO mandate, two questions that have to be asked.

[00:11:11] Speaker 03:
First, is printing involved?

[00:11:14] Speaker 03:
And secondly, if printing is involved, what is it that's being printed?

[00:11:19] Speaker 03:
What is the subject matter of what's being printed?

[00:11:23] Speaker 03:
The amicus curiae says that just because it's printed matter, in this case the label and the wraparound,

[00:11:32] Speaker 03:
That doesn't end the inquiry.

[00:11:34] Speaker 03:
You have to ask, what's the nature of what's being printed?

[00:11:39] Speaker 03:
And the area is suggesting that the printing mandate is limited as a matter of printed matter only to documentary type publications that are relevant to the internal workings of the agency.

[00:11:57] Speaker 03:
That's how I read their argument.

[00:11:59] Speaker 03:
Do you embrace that argument?

[00:12:03] Speaker 03:
What do I understand?

[00:12:05] Speaker 01:
With respect to the amicus curiae's argument, I mean, it's important to look at the Legislation Appropriations Act of 1993 and the definitional act that is provided there.

[00:12:21] Speaker 01:
I believe I'm out of time, Your Honor, but I can take questions.

[00:12:25] Speaker 03:
Please ask the question.

[00:12:27] Speaker 01:
Yes.

[00:12:27] Speaker 03:
Please ask the question, Ms.

[00:12:28] Speaker 03:
Rita.

[00:12:29] Speaker 01:
Yes, I mean, I believe that in determining whether or not the printing mandate is triggered, I do believe that there is merit to the argument as presented in the brief because you need to be looking at the definitional requirements of what is printing under the Legislation Appropriations Act of 1993.

[00:12:47] Speaker 01:
There are very specific categories under that act in terms of what would fall under being printing or printed related services.

[00:12:57] Speaker 01:
And in order to merely identify any appropriation that includes an element of printing as automatically invoking the printing mandate opens the Pandora's box, which is exactly what has happened in this broad speaking decision by the Court of Federal Claims.

[00:13:14] Speaker 01:
So we're asking the Circuit Court to close the lid by providing more of a bright line rule

[00:13:21] Speaker 01:
and a categorization of what would be printing or otherwise literally any appropriation, including an element of printing, would be found to fall under the printing mandate.

[00:13:30] Speaker 01:
Thank you, Your Honor.

[00:13:31] Speaker 03:
Thank you, Counsel.

[00:13:32] Speaker 03:
We'll save you a little bit of time for you.

[00:13:35] Speaker 03:
Could I ask one more question?

[00:13:37] Speaker 03:
Yes, Your Honor.

[00:13:39] Speaker 03:
To the presiding judge, I'd like to ask one more question of Ms.

[00:13:42] Speaker 03:
Radett.

[00:13:43] Speaker 03:
So in case the government responds to what I'm saying, she could then have a response.

[00:13:48] Speaker 03:
Ms.

[00:13:49] Speaker 03:
Rada, under 38 USC 8127 I, the federal department is free to go to any government entity to have the government entity supply and contract me.

[00:14:04] Speaker 03:
Isn't that correct?

[00:14:09] Speaker 01:
In the sense, I think that we also have to look at that in the context of the statute as a whole.

[00:14:14] Speaker 01:
And the 8127i is saying that when the VA is acquiring supplies or services through another agency, it must ensure that that contract adheres to the VBA, the hard which of course is the role of two, to the maximum extent feasible.

[00:14:29] Speaker 01:
So it is true that 8127i provides the VA with the opportunity to acquire through another agency.

[00:14:36] Speaker 03:
Okay, okay.

[00:14:37] Speaker 03:
Just stop right there.

[00:14:40] Speaker 03:
Why wouldn't it have been possible for the VA in this case to go to the GPO wholly without regard to the printing mandate?

[00:14:52] Speaker 03:
Why couldn't the VA simply choose under 8127I to have this contract performed by the GPO?

[00:15:02] Speaker 01:
Because if that was the situation, then both 8127-I would be rendered meaningless because the VA would have full knowledge that the GPO not only has no certified procedures, but it has no means of providing any kind of evaluation credit for socioeconomic categories or a preference.

[00:15:21] Speaker 01:
And also when it would acquire via the SF-1, which is the form when asking for an acquisition to be conducted through the GPO,

[00:15:28] Speaker 01:
It would have language relating to 8127 I saying comply to the VA to the fullest extent possible while knowing that that language would have no force in effect.

[00:15:39] Speaker 01:
There would be no purpose.

[00:15:40] Speaker 01:
The VA making the request at all because the GPO literally could do nothing in order to protect the veterans set aside preference that the VA is bound to protect.

[00:15:50] Speaker 03:
Thank you, counsel.

[00:15:51] Speaker 03:
Let's hear from appellee Mr. Adelschick.

[00:15:57] Speaker 02:
Good morning and may it please the court.

[00:15:59] Speaker 02:
The court should affirm because this procurement of suicide prevention materials complied with all statutes and regulations and had a rational basis.

[00:16:09] Speaker 02:
Veterans For Use Appeal focuses on some superficial tension between the rule of two in Section 8127D of Title 38 and the printing mandate in Section 501 of Title 44.

[00:16:25] Speaker 02:
However,

[00:16:27] Speaker 02:
Congress has resolved this tension by promulgating or passing section 8127 I, which loosens the rule of two to a guideline in situations where another agency is conducting a procurement for the VA.

[00:16:45] Speaker 02:
So this case really turns on whether the printing mandate applies and whether the VA followed section 8127 I.

[00:16:54] Speaker 02:
Now, veterans for you and the amicus argue that the printing mandate doesn't apply here, despite the fact that there's obvious printing involved in this procurement, because they argue that the printing message is combined with a functional object.

[00:17:10] Speaker 02:
But there's no support for this argument in the text of Section 501 or the Joint Committee on Printing's regulations.

[00:17:19] Speaker 02:
Here, the VA is not buying goods, gun locks,

[00:17:24] Speaker 02:
for consumption by the VA.

[00:17:27] Speaker 02:
It's publishing a message to veterans.

[00:17:30] Speaker 02:
This procurement was for a package of suicide prevention messages, an important message on a printed wallet card, a printed message on a gun lock, and the gun lock itself.

[00:17:44] Speaker 02:
And the VA sought to publish this package of... Mr. Edelcheck?

[00:17:48] Speaker 04:
Yes.

[00:17:48] Speaker 04:
Mr. Edelcheck, this is Judge Chen.

[00:17:51] Speaker 04:
I understand the purpose behind the procurement, and it's designed to help veterans and save veterans from doing harm to themselves.

[00:18:04] Speaker 04:
What if we disagree with you as to what the overall character is of the product that's being procured here, and what if we see it as a

[00:18:19] Speaker 04:
There's a functional device here which happens to have some printing that goes along with it.

[00:18:25] Speaker 04:
Printing is important, and just like any other element of the contract solicitation, it's an essential element, but they're all essential elements.

[00:18:35] Speaker 04:
Nevertheless, we see something wrong here in saying that this is somehow a printing dominant type of product, and in fact,

[00:18:49] Speaker 04:
look at this would just plainly be the tail wagging the dog, so to speak.

[00:18:56] Speaker 04:
And so we see the lock as the main event of the goods being procured.

[00:19:05] Speaker 04:
Do you think the printing mandate still applies?

[00:19:09] Speaker 02:
Well, Your Honor, the problem with that approach is that we're not riding here on a clean slate.

[00:19:17] Speaker 02:
The Joint Committee on Printing could have adopted a regulation that evaluates the extent of the printing based on relative cost or weight or size of the printing versus the non-printing elements.

[00:19:34] Speaker 02:
But there's no such regulation.

[00:19:36] Speaker 02:
And instead, the Joint Committee on Printing has promulgated a regulation that establishes a patchwork of exceptions.

[00:19:46] Speaker 04:
Most significant here... Mr. Edelschick, which regulation are we talking about?

[00:19:51] Speaker 02:
The Joint Committee on Printing's regulations, which are called... Pardon me?

[00:20:01] Speaker 04:
Yes, I'm just trying to look for something that I can read and follow you, which tells me... What's the regulation?

[00:20:09] Speaker 04:
Yeah.

[00:20:11] Speaker 04:
I want to read something that commands that the printing mandates

[00:20:16] Speaker 04:
is very, very broad and includes situations where the printing is perhaps a more ancillary element of the overall good that's been procured.

[00:20:28] Speaker 02:
Yes, indeed.

[00:20:29] Speaker 02:
So I'm referencing the government printing and binding regulations that were published by the Joint Committee on Printing.

[00:20:37] Speaker 04:
Is there something in the Joint Committee that I can read?

[00:20:43] Speaker 02:
I'm sorry, there were two judges asking questions.

[00:20:46] Speaker 04:
Let me try again.

[00:20:46] Speaker 04:
Is there something in the joint appendix that I can read so I can see what you're saying?

[00:20:53] Speaker 02:
Your Honor, those regulations are, I do not believe are re-published in the joint appendix in their entirety.

[00:21:08] Speaker 02:
I can refer, Your Honor.

[00:21:10] Speaker 02:
We have in our brief the reference to the website where they're available online.

[00:21:17] Speaker 02:
And I can tell, Your Honor, that there are exceptions.

[00:21:23] Speaker 02:
For example, in Section 49-2 of the Joint Committee on Printing's regulations, it says that

[00:21:34] Speaker 02:
procurements that have printing under $500 per line item are not subject to the mandate.

[00:21:44] Speaker 02:
So there's essentially a de minimis exception if, you know, you're doing a procurement and there's a tiny printing component that's less than $500, the Joint Committee on Printing, their regulations establish that

[00:22:03] Speaker 02:
that does not have to go through the GPO.

[00:22:08] Speaker 02:
What the argument by the amicus and veterans for you is that the court should disregard the exceptions such as the one I identified that the Joint Committee on Printing that the entity charged with establishing regulations in this area has made and instead

[00:22:32] Speaker 02:
established a new judicial test to regulate procurements that involve both printing and non-printing elements.

[00:22:43] Speaker 02:
The problem is this is not consistent either with the regulations in effect or the standard of review.

[00:22:51] Speaker 02:
It is veterans' for use burden in this bid protest to demonstrate a clear violation of law and there is none.

[00:22:59] Speaker 04:
Wearing a red brief, is this a reference to any of these joint committee rules?

[00:23:09] Speaker 02:
One moment, Your Honor.

[00:23:11] Speaker 04:
I mean, this sounds like your lead argument, and I don't know where it is in your brief.

[00:23:16] Speaker 02:
Your Honor, we cite to the joint committee on printing regulations in our brief

[00:23:24] Speaker 02:
but not this particular provision that I cited in answering your Honor's question.

[00:23:36] Speaker 02:
On page 35 of our brief, and we cite on page 35 in footnote 11, it says the regulations are available online.

[00:23:51] Speaker 02:
It gives the website link.

[00:23:55] Speaker 02:
You're not answering your... I'm sorry?

[00:24:00] Speaker 03:
Mr. Hensley, this is Judge Cleminger.

[00:24:02] Speaker 03:
Can I ask a question on a little different topic, please?

[00:24:06] Speaker 03:
Let's assume for purposes of argument that we are going to entertain a constitutional challenge to the GPO mandate.

[00:24:19] Speaker 03:
Assume that even though the issue wasn't raised below, we decide it's sufficiently

[00:24:24] Speaker 03:
a brief and understood that we are going to decide that question.

[00:24:30] Speaker 03:
And secondly, assume we are going to reject your argument that the FAR provisions in the FAR make it unnecessary to deal with the constitutional issue.

[00:24:41] Speaker 03:
So my question to you is, if the constitutional issue is squarely in front of us and there is no way to avoid it,

[00:24:51] Speaker 03:
What is the answer?

[00:24:52] Speaker 03:
Is the GPO mandate unconstitutional, yes or no?

[00:24:58] Speaker 02:
Your Honor, the OLC opinion on this subject indicates that if we are looking in isolation at the GPO, at the printing mandate,

[00:25:17] Speaker 02:
Without regard for FAR 8.802, the OLC opinion says that violates our system of separation of powers, and the OLC opinion is the position of the Department of Justice.

[00:25:31] Speaker 02:
However, as your Honor's question indicated... Next slide.

[00:25:36] Speaker 03:
Yeah.

[00:25:37] Speaker 03:
The FAR, your hope would be that the FAR issue obviates the need to do that.

[00:25:43] Speaker 03:
And let's assume we reject that.

[00:25:46] Speaker 03:
I'm saying to you, we reject it.

[00:25:47] Speaker 03:
So you, the position of the government would be that the statute of mandate is unconstitutional.

[00:25:54] Speaker 03:
That would end this case, correct?

[00:25:58] Speaker 02:
No, Your Honor, because this dovetails right back into why the court need not even reach the issue.

[00:26:06] Speaker 02:
The VA felt constrained to follow FAR 8.802 in this procurement.

[00:26:13] Speaker 02:
That was binding.

[00:26:15] Speaker 02:
on the entire executive branch and was essentially, you know, whatever tension exists between the printing mandate and the separation of powers principles, the executive branch resolved that tension by choosing to follow the printing mandate in FAR 8.802 and the VA was bound to follow FAR 8.802 in this situation.

[00:26:42] Speaker 03:
That doesn't mean that that obviates, if we say that the mandate is non-constitutional, that's for the future.

[00:26:52] Speaker 03:
In this particular case, the contract's already been before, correct?

[00:26:57] Speaker 02:
That is correct, Your Honor.

[00:27:00] Speaker 03:
All that's left here is an aegis claim for attorney's fees.

[00:27:06] Speaker 02:
No, Your Honor, because the protester cannot prevail on the merits

[00:27:13] Speaker 02:
because the government complied with FAR 8.802.

[00:27:21] Speaker 03:
Acting unconstitutional, violating the Constitution, the government complied with an unconstitutional mandate.

[00:27:32] Speaker 02:
Well, now, Your Honor, I wouldn't put it that way.

[00:27:35] Speaker 02:
Well, why not?

[00:27:36] Speaker 00:
Why not?

[00:27:37] Speaker 02:
Well, Your Honor, the legislative branch

[00:27:43] Speaker 02:
enacted Section 501 with the printing mandate.

[00:27:46] Speaker 02:
So that was the instruction to the executive branch.

[00:27:50] Speaker 02:
The executive branch, with full knowledge and consideration of the OLC opinion, notwithstanding that, decided that they wanted to do that which the printing mandate would require.

[00:28:09] Speaker 02:
in promulgating FAR.802.

[00:28:12] Speaker 03:
So that is a separate source of positive authority that required the agency to... So if Congress passed the law in connection with a particular presidential election, only certain votes would be counted.

[00:28:31] Speaker 03:
And then the executive branch cooperated in making that happen, it would all be okay.

[00:28:40] Speaker 03:
Congress can pass a law ordering an executive branch to commit a constitutional violation and there's no harm?

[00:28:51] Speaker 02:
Well, Your Honor, I think your question is suggesting that the printing mandate itself, that there's something unconstitutional about it, separate and apart from the fact that it is a

[00:29:10] Speaker 02:
the legislative branch ordering the executive branch to do its printing in a certain way.

[00:29:17] Speaker 02:
And here, while there is certainly a fascinating question addressed in the OLC opinion about whether and to what extent the legislative branch can order the executive branch to perform its printing through the legislative branch

[00:29:39] Speaker 03:
We don't even need to reach that issue because... I've used up too much of the time on these parts.

[00:29:45] Speaker 03:
Let me just make one other footnote to this, and then you can go on.

[00:29:49] Speaker 03:
If we were to decide to greet the constitutional question and to find that your reliance on the far was inadequate or inappropriate, then you've said, in essence, the thing would be unconstitutional.

[00:30:03] Speaker 03:
That raises a serious enough question

[00:30:05] Speaker 03:
Would we be appropriate in using the doctrine of constitutional avoidance to interpret the mandate in such a way as to preserve its constitutionality?

[00:30:18] Speaker 02:
I believe that the doctrine of constitution.

[00:30:23] Speaker 03:
Let me rephrase that.

[00:30:24] Speaker 03:
Use the canon in such a way as to have the constitutional issue disappear from this case.

[00:30:32] Speaker 02:
uh... the constitutional issue we respectfully submit your honor should disappear from this case under the doctrine of constitutional avoidance uh... even if you'd be even putting the waiver issue aside uh... the constitutional avoidance doctrine would uh... would counsel this court to not have to reach the constitution the issue of a constitutional dimension because the constitutional issue is whether

[00:31:01] Speaker 02:
the legislature can order the executive branch to follow the printing mandate.

[00:31:09] Speaker 02:
And here, the executive branch chose to follow the printing mandate, thus obviating the need for any resolution of the constitutional question.

[00:31:22] Speaker 04:
Mr. Adelschick, I've got a couple questions.

[00:31:24] Speaker 04:
One is, is it still nevertheless a separation of

[00:31:31] Speaker 04:
powers defect to have the executive branch ask the legislative branch to carry out executive functions.

[00:31:43] Speaker 02:
Uh, your honor, I don't believe that there's, that that is the source of concern in the OLC opinion.

[00:31:52] Speaker 04:
And I know, but I'm asking you a question.

[00:31:54] Speaker 04:
Nevertheless.

[00:31:55] Speaker 04:
I mean, my understanding is the legislative branch.

[00:31:59] Speaker 04:
has the powers under the Constitution to exercise legislative powers.

[00:32:04] Speaker 04:
And likewise, for the executive branch, they're supposed to stay in their lane and exercise executive powers.

[00:32:11] Speaker 04:
And it seems a little peculiar if now we break down those clear boundaries and start having different branches asking other branches to do their own constitutional functions.

[00:32:27] Speaker 02:
Your Honor, we just don't see a problem of a constitutional dimension in this case.

[00:32:35] Speaker 02:
Really, this case should, in our view, it should turn on whether the printing mandate applies and whether the VA followed 8127 subsection I. Okay.

[00:32:45] Speaker 04:
Well then, getting back to the printing mandate and Judge Clevenger's questions about constitutional avoidance.

[00:32:55] Speaker 04:
Let's say there is a way to read the printing mandate when it talks about printing and binding and blank bookmaking.

[00:33:03] Speaker 04:
As in that context, understanding printing as really being about printed documents and other printing related goods when the term printing is associated with things like binding and blank bookmaking.

[00:33:21] Speaker 04:
And so therefore,

[00:33:24] Speaker 04:
to avoid problems that are of a constitutional dimension, we read the term printing narrowly and consistent with the neighboring terms in the statute of binding and blank bookmaking.

[00:33:37] Speaker 04:
And so therefore, likewise, your regulation of 8.802, which does nothing more than follow the printing mandate, likewise has a narrow conception

[00:33:54] Speaker 04:
of how it uses the term printing in that regulation.

[00:33:58] Speaker 04:
And therefore, we come to a result where the printing mandate is at least narrowly understood and therefore would likely not cover functional goods like this.

[00:34:12] Speaker 04:
And likewise, your regulation 8.802 would also be likewise narrowly read.

[00:34:20] Speaker 02:
A couple of answers to your honor's question.

[00:34:24] Speaker 02:
Constitutional avoidance, I think, can be resolved with reference to FAR 8.802.

[00:34:30] Speaker 02:
So you don't need to construe the statute in order to cure the, to avoid the constitutional.

[00:34:38] Speaker 04:
But I guess my concern with that, Mr. Edelschick, is that the regulation follows the statute.

[00:34:46] Speaker 04:
And so we have to understand the statute before we can understand the regulation.

[00:34:50] Speaker 02:
Right, that's right.

[00:34:51] Speaker 02:
So the second response to Your Honor's question is to somehow construe printing as not printing for purposes of this case is an untenable reading of the statute.

[00:35:07] Speaker 02:
And the only constitutional question is whether Congress could order the executive branch to do this in this fashion.

[00:35:15] Speaker 02:
The executive branch has chosen to do it in this fashion.

[00:35:20] Speaker 02:
because of the FARC.

[00:35:21] Speaker 02:
So there really is no constitutional issue.

[00:35:24] Speaker 02:
But in terms of the statutory language itself, there are three separate things listed in printing, book binding, blank book making.

[00:35:38] Speaker 02:
Those are three separate things.

[00:35:40] Speaker 02:
And there's no serious question that this procurement involved a large amount of printing work.

[00:35:49] Speaker 02:
uh... you know the the joint committee on the right there is a period question about that in relation to everything else that's going on in terms of making a padlock cables etc what's the your honor there is no question that that the the largest part this was roughly a four hundred thousand dollar procurement uh... the largest part of the procurement was the gun locks however

[00:36:17] Speaker 02:
There's still somewhere north of $50,000 worth of printing work involved in this procurement.

[00:36:23] Speaker 02:
That is not de minimis.

[00:36:25] Speaker 02:
And the Joint Committee on Printing has established that the threshold is $500 per line item for whether the printing mandate applies.

[00:36:40] Speaker 03:
So... Thank you.

[00:36:41] Speaker 03:
Thank you, Council.

[00:36:42] Speaker 03:
I think we have your argument.

[00:36:44] Speaker 03:
Could I ask one question before we close?

[00:36:47] Speaker 03:
I was interested in your brief, sir.

[00:36:54] Speaker 03:
At page 34, you make what I take to be your only response to the amekuses theory about the kind of printed matter is covered by the mandate.

[00:37:07] Speaker 03:
And you simply dispose of it on the ground that the examples they use are not books in this case.

[00:37:13] Speaker 03:
Do you have any other argument to raise against the amicus's view that it isn't enough just to be prithing, it has to be prithing of a documentary or governmental publication nature?

[00:37:30] Speaker 02:
Your Honor, I think this area defies bright line rules.

[00:37:36] Speaker 02:
But.

[00:37:37] Speaker 03:
That wasn't my question.

[00:37:39] Speaker 03:
My question to you is the amicus made an ordered argument

[00:37:44] Speaker 03:
of statutory interpretation based on history and long course of conduct.

[00:37:51] Speaker 03:
And the question is whether or not that interpretation would suffice.

[00:37:57] Speaker 03:
And your only response is at page 34.

[00:37:59] Speaker 03:
Your Honor, I think... I'm not giving you an opportunity to have another argument.

[00:38:09] Speaker 02:
Sure, Your Honor.

[00:38:12] Speaker 02:
Sure.

[00:38:13] Speaker 02:
The, the amicus is essentially asking the court to, to graph a new judicial regulation on, on procurements that involve printing and non-printing elements and to, to find, to establish some sort of bright line rule where the joint committee on printing decided not to draw one.

[00:38:39] Speaker 02:
And so I would just respectfully submit, Your Honor, that their interpretation is an invitation for the Court to re-regulate in an area that has already been regulated.

[00:38:53] Speaker 03:
Thank you, Counsel.

[00:38:56] Speaker 03:
Ms.

[00:38:56] Speaker 03:
Rada has some rebuttal time.

[00:39:01] Speaker 01:
Thank you, Your Honors.

[00:39:03] Speaker 01:
I just wanted to address a few of the points that were made in the government's argument.

[00:39:08] Speaker 01:
The first relates to the constitutionality.

[00:39:10] Speaker 01:
As an initial matter, it is not, as Your Honors have pointed out, something that one branch of government can consent to, a violation of the separation of powers.

[00:39:21] Speaker 01:
If there is a violation to the separation of powers, then there is a violation to the separation of powers.

[00:39:27] Speaker 01:
And anything promulgated in FAR 8.802 is irrelevant.

[00:39:32] Speaker 01:
Also, under the doctrine of constitutional avoidance,

[00:39:36] Speaker 01:
Any court has an obligation to interpret a statute to avoid any constitutionality problem.

[00:39:42] Speaker 01:
As has been reiterated several times in the government's argument, the princy mandate is broad sweeping and it should have a broad application.

[00:39:52] Speaker 01:
However, this presents the exact problem that is supposed to be obviated by the doctrine of constitutional avoidance.

[00:39:58] Speaker 01:
by having literally any procurement that includes some elements of printing subject to the printing mandate create the constitutionality problem.

[00:40:07] Speaker 01:
And this particular acquisition is very problematic considering that what is being obtained is a gun lock to prevent the suicide of veterans.

[00:40:17] Speaker 01:
And in order to have this fall under the printing mandate and to take away this acquisition from the VA and from the executive agencies in the robust

[00:40:26] Speaker 01:
provisions of the federal exhibition regulation would create numerous problems, not only with constitutionality, but also with protecting the integrity of the supply sought to be procured.

[00:40:37] Speaker 01:
So on the constitutionality argument alone, this protest, or not this protest, this appeal should be granted and the decision of the court of federal claims should be reversed.

[00:40:47] Speaker 01:
Also, as a note, with regards to waiver,

[00:40:53] Speaker 01:
One particular issue that was created by the Court of Federal Claims was the broad sweeping nature.

[00:40:59] Speaker 01:
There are many reasons for considering the constitutionality issue here, but in particular, by the Court of Federal Claims, having such a broad ruling in the application of the printing mandate any time that any element of printing is involved in acquisition would result in not only virtually any acquisition from an executive agency to be sent to the printing mandate and to go to the GPO,

[00:41:22] Speaker 01:
but it would also consistently create telecom functionality issue going forward.

[00:41:27] Speaker 01:
The other point I wanted to make related to the government's allusion to a superficial conflict between the printing mandate and 8128I.

[00:41:35] Speaker 01:
This is not a superficial conflict.

[00:41:38] Speaker 01:
In effect, this is a complete conflict because what is going to happen is if the VA is allowed to procure through the GPO, what is going to happen is it renders the VBA meaningless because there is absolutely no mechanism

[00:41:50] Speaker 01:
by which the GPO can protect the spirit of the Veterans Benefit Act and for the rule of two.

[00:41:55] Speaker 01:
And so for these reasons, we respectfully request the court to reverse the ruling of the court of federal clients.

[00:42:00] Speaker 01:
Thank you.

[00:42:02] Speaker 03:
Thank you, counsel.

[00:42:03] Speaker 03:
We will take the case under advisement.