[00:00:00] Speaker 03:
Our next case is number 23-12-16, East simplicity hink versus United States.

[00:00:10] Speaker 03:
Okay, Ms.

[00:00:11] Speaker 03:
Moses.

[00:00:14] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:00:17] Speaker 01:
I would like to reserve three minutes for rebuttal, please.

[00:00:20] Speaker 03:
Okay.

[00:00:23] Speaker 01:
The GAO, which this court has afforded, accorded... Why isn't this case moved?

[00:00:29] Speaker 01:
Your Honor, this case is not moot because the court can, if the court were to reverse the trial court's decision, that would enable the Navy to terminate eSimplicity's contract on the basis that eSimplicity should have remained disqualified from the competition.

[00:00:46] Speaker 01:
A live controversy remains.

[00:00:48] Speaker 03:
The provision of the contract allows that determination for convenience provision?

[00:00:52] Speaker 01:
Yes, Your Honor.

[00:00:55] Speaker 01:
A live controversy remains concerning whether the court's directive was proper as a matter of law.

[00:01:03] Speaker 01:
As the Supreme Court said in Knox, if the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.

[00:01:14] Speaker 01:
And that is the case here.

[00:01:16] Speaker 00:
Just to level set, was there an original solicitation and then what I understand is maybe an amended solicitation?

[00:01:22] Speaker 00:
Is that the right terminology I should be using?

[00:01:24] Speaker 01:
Yes, Your Honor.

[00:01:25] Speaker 01:
The Navy amended the solicitation after the court enjoined the Navy from awarding the contract.

[00:01:34] Speaker 00:
And on what date did the Navy amend the solicitation?

[00:01:40] Speaker 01:
Court's indulgence, Your Honor.

[00:01:43] Speaker 00:
Was that November of 2022?

[00:01:46] Speaker 04:
Yes.

[00:01:50] Speaker 04:
Are you telling us that the government wants to terminate this current contract with E-simplicity?

[00:01:57] Speaker 01:
The Navy wants to exercise the option to terminate the contract.

[00:02:01] Speaker 04:
I understand what that means.

[00:02:08] Speaker 04:
Does it have this deep desire to kill the current contract, to terminate it?

[00:02:14] Speaker 04:
Please let us terminate it.

[00:02:17] Speaker 04:
Please give us the chance to terminate at Federal Circuit.

[00:02:21] Speaker 04:
Is that where we are right now?

[00:02:23] Speaker 04:
Or is it the, hey, you know, we want to keep our options.

[00:02:27] Speaker 04:
We want all our options.

[00:02:28] Speaker 04:
And one of the options is maybe terminating it, maybe keep going with it.

[00:02:32] Speaker 04:
But just give us the option, Federal Circuit.

[00:02:37] Speaker 04:
Which one is it?

[00:02:37] Speaker 01:
It's more of the former, Your Honor.

[00:02:39] Speaker 01:
The Navy.

[00:02:40] Speaker 04:
They do want to kill a lot of them.

[00:02:43] Speaker 01:
you know, the language kill, perhaps, but the Navy believes that it followed the law when it disqualified East Simplicity's proposal.

[00:02:51] Speaker 04:
And it does not... Right, but is there a declaration or something that indicates, okay, the Navy wants, please, the Navy wants to terminate this contract for convenience so it can get away from East Simplicity?

[00:03:03] Speaker 01:
We don't have a declaration from the Navy, but DOJ's count, DOJ counsel's conversations with the Navy, because we did ask.

[00:03:12] Speaker 01:
And the representations I've made today are consistent with our conversations.

[00:03:20] Speaker 03:
But your representations are less than clear.

[00:03:24] Speaker 03:
Does the Navy intend to terminate this contract if it wins on appeal?

[00:03:34] Speaker 01:
It very well may.

[00:03:36] Speaker 01:
There are no guarantees, Your Honor, because what the Navy has to do is we don't even know when the court renders a decision.

[00:03:44] Speaker 01:
The Navy will have to look at all the optics at that time.

[00:03:47] Speaker 01:
East Simplicity is currently performing, I believe they're on year two of a five-year ordering period.

[00:03:53] Speaker 01:
So there are a lot of factors that the Navy is going to weigh.

[00:03:56] Speaker 01:
But the Navy has a right, if the court reverses

[00:03:59] Speaker 01:
the trial court's decision to exercise that option.

[00:04:02] Speaker 03:
Well, is it dissatisfied with eSimplicity's performance?

[00:04:07] Speaker 01:
I am not certain.

[00:04:09] Speaker 01:
They have not indicated that to me, but I did not inquire about that.

[00:04:12] Speaker 03:
A lot of our conversations are mostly about... In the second solicitation, they had the ability to select somebody else other than eSimplicity, right?

[00:04:22] Speaker 01:
Yes, certainly.

[00:04:22] Speaker 03:
And they chose eSimplicity.

[00:04:24] Speaker 03:
It sounds as though the only reason they might terminate the contract

[00:04:28] Speaker 03:
is to preserve the ability to get a ruling on this issue of law, which you say has been around for a decade.

[00:04:36] Speaker 01:
Two decades, Your Honor, yes.

[00:04:38] Speaker 01:
I would not agree with that characterization.

[00:04:44] Speaker 01:
Yes, the Navy could have chosen another offeror, but the Navy was essentially compelled to

[00:04:53] Speaker 01:
allow e-simplicity into the competition.

[00:04:56] Speaker 03:
But it wasn't compelled to select them to perform the contract.

[00:05:02] Speaker 01:
Right.

[00:05:02] Speaker 01:
And what the Navy wants the opportunity to do is to choose from offerors who followed the rules.

[00:05:08] Speaker 01:
Those who submitted their proposals on time as the FAR requires.

[00:05:13] Speaker 01:
That is what the Navy wants to do.

[00:05:15] Speaker 01:
They want to choose from the offerors who followed the rules.

[00:05:20] Speaker 00:
But it sounds like some of your concerns are with respect to, I'm going to call, the original proposal or solicitation, less so the amended solicitation.

[00:05:29] Speaker 00:
Is that right?

[00:05:31] Speaker 01:
It's not so much about the solicitation terms itself as much as the Navy's position that e-simplicity should have remained disqualified.

[00:05:42] Speaker 01:
They should not have ever been part of the competition.

[00:05:45] Speaker 01:
They were rightfully disqualified.

[00:05:49] Speaker 00:
Is part of your argument against midness that somehow this issue would evade review?

[00:05:55] Speaker 01:
Yes.

[00:05:56] Speaker 01:
I'm sorry.

[00:05:57] Speaker 00:
What's your best argument in that regard?

[00:06:00] Speaker 01:
This case is nearly identical to Nike attack, also a big protest appeal.

[00:06:06] Speaker 01:
In Nike attack, the government appealed the trial court's order of a stay of the procurement.

[00:06:11] Speaker 01:
And by the time this court heard the appeal, the stay had ended.

[00:06:17] Speaker 01:
The protest was completed, and NYCOTEC did not even participate in the appeal.

[00:06:25] Speaker 01:
This court found that the exception to the mootness doctrine applied because it was a type of issue that was capable of repetition, yet evading review, and reached a conclusion on the question of statutory interpretation in that case.

[00:06:46] Speaker 01:
Pretty much this case, this is what we have here, and that's what we're asking for.

[00:06:52] Speaker 03:
Okay, unless my colleagues have further questions on this, let's turn to the merits.

[00:06:58] Speaker 03:
I am baffled.

[00:06:59] Speaker 03:
You say that this issue has been around for two decades.

[00:07:02] Speaker 03:
It could be solved by an amendment to the FAR making clear your position that this second

[00:07:15] Speaker 03:
exception doesn't apply to electronic submissions.

[00:07:20] Speaker 03:
Why has that not happened if this is so important?

[00:07:24] Speaker 01:
Your Honor, I don't have the answer to why the FAR Council hasn't acted on this.

[00:07:29] Speaker 01:
You know, even the trial court itself recognized, in its opinion, at appendix page 12 and footnote 12, that either the Supreme Court or this court, or certainly the FAR Council, is essentially the

[00:07:44] Speaker 01:
That's all we have at this point in terms of a final resolution on this.

[00:07:49] Speaker 01:
And that's why we're here, to ask for a final resolution on this legal question.

[00:07:54] Speaker 01:
Indeed, the trial court did ignore critical distinguishing language between the government control exception and the electronic commerce exception.

[00:08:03] Speaker 01:
As GAO has held by its explicit terms,

[00:08:07] Speaker 01:
The electronic commerce exception covers electronic submission methods, like email.

[00:08:12] Speaker 01:
And the more general government control exception covers all non-electronic submission methods.

[00:08:19] Speaker 01:
But it doesn't say that.

[00:08:21] Speaker 01:
It doesn't say it's limited to paper submissions.

[00:08:25] Speaker 01:
It doesn't say that it's limited, but the specifics should control over the general.

[00:08:31] Speaker 01:
And in terms of the regulatory history, what it shows is an involvement from

[00:08:37] Speaker 01:
having the FAR having numerous exceptions related to paper submissions.

[00:08:43] Speaker 01:
And then over time, what was left was the e-commerce exception, the electronic commerce exception, and the government control exception, and the only proposal received exception as well.

[00:08:55] Speaker 01:
And it's eminently reasonable that the paper submission methods were collapsed into the government control exception.

[00:09:06] Speaker 01:
It is not reasonable that the FAR Council would have referred to something capable of receiving email, like a server, as both an infrastructure and an installation.

[00:09:18] Speaker 01:
It's also eminently reasonable that a government installation refers to a physical building or a room or an office, and certainly a military installation, whereas a government infrastructure refers to a computer infrastructure, like a server,

[00:09:36] Speaker 01:
And we can glean that from the surrounding regulatory text.

[00:09:41] Speaker 01:
The trial court impermissibly expanded the government control exception to apply to email proposals when the electronic commerce exception is specifically tailored to address such methods.

[00:09:53] Speaker 01:
And such critical distinguishing language should be given effect.

[00:10:00] Speaker 01:
The electronic commerce exception covers this exact scenario

[00:10:06] Speaker 01:
If eSimplicity had submitted its proposal one business day prior to the deadline, there would have been time to resolve any technical errors that obviously arose with their email.

[00:10:20] Speaker 01:
And ultimately, eSimplicity would have been probably able to invoke the e-commerce exception to prevent disqualification.

[00:10:35] Speaker 01:
Unless the court has any further questions about the government control exception versus the e-commerce exception, I'll move on to my next point.

[00:10:48] Speaker 01:
A file size limit is not evaluation criterion.

[00:10:52] Speaker 01:
A file size limit is a factor concerning the mechanics of submission.

[00:10:58] Speaker 01:
The FAR does not require procuring agencies to include a file size limit in the solicitation

[00:11:04] Speaker 01:
and neither FAR 15.304 nor FAR 0.305 applies.

[00:11:11] Speaker 01:
Both concern proposal evaluation.

[00:11:14] Speaker 01:
Indeed, FAR 15.305 states, proposal evaluation is an assessment of the proposal and the offeror's ability to perform the prospective contract successfully.

[00:11:31] Speaker 03:
I'm a little confused as to the relationship between this argument about whether it's solicitation limitation and the notion that the government control exception applies.

[00:11:47] Speaker 03:
If the government control exception applies, why does it make a difference whether it's a provision of the solicitation or not?

[00:11:58] Speaker 03:
It actually did get

[00:12:00] Speaker 03:
to the government server and then it was sent back, right?

[00:12:06] Speaker 01:
It reached DISA's server.

[00:12:09] Speaker 01:
DISA provides network support services for the Navy in this case.

[00:12:13] Speaker 03:
So that would be within the government control exception, wouldn't it?

[00:12:18] Speaker 01:
No, because the government did not have control if we were to assume that the government control exception applies, if I understand your question correctly.

[00:12:27] Speaker 01:
eSimplicity would not have been able to meet the criteria.

[00:12:30] Speaker 01:
And why is that?

[00:12:32] Speaker 01:
Because there is no evidence in the record that the government had control over eSimplicity's proposal.

[00:12:39] Speaker 01:
The data, that was, if you will.

[00:12:43] Speaker 03:
But when it reached this server, why wasn't that within the government control?

[00:12:47] Speaker 03:
I'm not really understanding what's going on here.

[00:12:51] Speaker 01:
And Your Honor, honestly, I must say I'm not a technical expert.

[00:12:56] Speaker 01:
you know, e-simplicity.

[00:12:57] Speaker 01:
But the way I understand it is that the way that information is sent from sender to receiver is that when the server first gets it, maybe to use this as an analogy, it's like an envelope.

[00:13:14] Speaker 01:
So the server first looks at the information on the envelope.

[00:13:17] Speaker 01:
Who is this going to?

[00:13:18] Speaker 01:
Who's the addressee?

[00:13:19] Speaker 01:
Who is this from?

[00:13:20] Speaker 01:
Is there anything that on the outside indicates that something may be wrong with this, some kind of security risk?

[00:13:26] Speaker 03:
So you're saying the government had control over the envelope, but not the contents?

[00:13:33] Speaker 01:
Or at least the information that's included on the envelope, but not the contents.

[00:13:37] Speaker 01:
That data was not properly conveyed across the board.

[00:13:42] Speaker 01:
It was no successful handoff.

[00:13:44] Speaker 01:
I think that's

[00:13:45] Speaker 03:
I'm not understanding that.

[00:13:47] Speaker 03:
Under the government control exception, if it reaches this server, that would be sufficient, wouldn't it?

[00:13:53] Speaker 03:
And it did reach the server.

[00:13:56] Speaker 01:
Well, the government control exception requires receipt and control.

[00:14:00] Speaker 01:
And perhaps a way to, and the FAR doesn't define control, but one definition possibly could be that it's irrevocably,

[00:14:12] Speaker 01:
It would, like, the sender cannot.

[00:14:16] Speaker 01:
The government has it in its possession.

[00:14:18] Speaker 03:
And these.

[00:14:20] Speaker 03:
But they've got it in their possession.

[00:14:22] Speaker 03:
They just chose to, because of the size limitation, to send it back.

[00:14:27] Speaker 01:
But it's not within our possession.

[00:14:28] Speaker 01:
We don't have control over it.

[00:14:30] Speaker 01:
Why not?

[00:14:30] Speaker 01:
It's rejected.

[00:14:32] Speaker 03:
But the government's making the decision to reject it.

[00:14:39] Speaker 01:
The reason for the rejection doesn't

[00:14:43] Speaker 01:
My understanding is that the reason for the rejection doesn't matter.

[00:14:45] Speaker 01:
What's required is that in order to invoke the government control exception, if it were to apply, which we don't agree that it does, given how hard it is to kind of figure out what do we consider control of an email?

[00:15:03] Speaker 01:
It makes a lot more sense in the paper world, where someone would come to an agency or a military installation and

[00:15:11] Speaker 01:
The government-controlled exception accounts for the fact that someone responsible at this agency received it, they stamped it, they have it.

[00:15:21] Speaker 01:
And somehow, let's say it got lost or something.

[00:15:24] Speaker 01:
We know that it's in our possession.

[00:15:26] Speaker 01:
We have it.

[00:15:27] Speaker 01:
The offeror has left the building.

[00:15:29] Speaker 01:
They no longer have access to it.

[00:15:31] Speaker 01:
With email, it's just incompatible.

[00:15:34] Speaker 01:
It's incompatible to try to apply the government-controlled exception.

[00:15:38] Speaker 00:
So are you continuing that the government-controlled exception applies differently to paper submissions and electronic submissions?

[00:15:45] Speaker 00:
Is that what you're indicating?

[00:15:49] Speaker 01:
Your Honor, we're saying that they each apply depending on the method of submission.

[00:15:54] Speaker 01:
So we're just talking paper versus non-paper.

[00:15:57] Speaker 01:
If it's electronic, and Your Honor may have said this, if it's an electronic submission, only the electronic commerce exception applies.

[00:16:04] Speaker 03:
Okay, I understand that point, and I'm assuming hypothetically that we reject that and say that the government control exception does apply to electronic submissions.

[00:16:15] Speaker 03:
I don't quite understand why it's necessary for them to win this point about whether the size limitation is a condition of the solicitation or not, because isn't it sufficient under the government control exception that the government got the email?

[00:16:33] Speaker 03:
Whether they sent it back or not seems to be irrelevant to the question of whether it had possession and control over it.

[00:16:46] Speaker 01:
The file size limit issue would not be dispositive if the court were to conclude that the government controlled exception applies to electronic submissions and that e-simplicity met those exceptions.

[00:17:04] Speaker 03:
All right.

[00:17:04] Speaker 03:
Thank you.

[00:17:05] Speaker 03:
We'll give you two minutes to rebel.

[00:17:07] Speaker 03:
Thank you.

[00:17:09] Speaker 03:
Mr. Balli.

[00:17:15] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:17:18] Speaker 02:
My name is Eric Balli, and I represent the appellee eSimplicity.

[00:17:22] Speaker 02:
Your Honors, as you correctly are concerned with, eSimplicity's case is moot.

[00:17:26] Speaker 02:
The issues on appeal are now academic due to the actions the government took on remand.

[00:17:33] Speaker 02:
And I think it's important in this respect, Your Honors, to read the court's order on remand carefully here.

[00:17:39] Speaker 02:
The Navy was ordered only to reconsider its decision that eSimplicity's proposal was untimely in light of the unstated evaluation criterion holding.

[00:17:50] Speaker 02:
And, in the event that the Navy's reconsideration of that decision does not lead to the acceptance of eSimplicity's proposal, the Navy is ordered to consider whether the elements of the government control exception render eSimplicity's proposal timely.

[00:18:05] Speaker 02:
It maybe was not enjoined to accept eSimplicity's proposal.

[00:18:10] Speaker 02:
It was not enjoined to amend the solicitation and give eSimplicity another chance to resubmit.

[00:18:15] Speaker 03:
I think what they're saying is maybe they would terminate for convenience so they could vindicate their legal theory.

[00:18:21] Speaker 02:
Your Honor, and I think that's a very concerning statement, but it also presents a significant concern with respect to mootness.

[00:18:29] Speaker 02:
If the government's interpretation of the justiciability of this case is that the case is not moot because e-simplicity holds the contract, what is the court to do with the seven-month intervening period where the solicitation was out there and no one held the contract?

[00:18:48] Speaker 02:
I'm aware of no principle of mootness that allows a case to fluctuate between live and moot and then live again based on a decision that the government voluntarily makes seven months after filing its notice of appeal.

[00:19:03] Speaker 02:
And that's when this decision was made.

[00:19:05] Speaker 02:
Your Honor, Judge Cunningham, the solicitation was released, the amended solicitation, November 22, 2022.

[00:19:12] Speaker 02:
That was one day before the government even filed its notice of appeal.

[00:19:18] Speaker 02:
Seven months later, on June 29, 2023, E. Simplicity was awarded the contract.

[00:19:24] Speaker 02:
Under the government's primary theory of why this case is in moot, there's a seven-month moot period right there in the middle of this case.

[00:19:31] Speaker 02:
At any point in time, this court could have ordered briefing.

[00:19:35] Speaker 02:
The government asked for three extensions to the briefing deadline during that same period of time.

[00:19:40] Speaker 02:
So Your Honor, this case is moot, regardless of whether the government awarded the contract e-simplicity under a separate solicitation seven months after noticing its appeal.

[00:19:52] Speaker 02:
Your Honor, for the same reason, the capable of repetition evading review doctrine does not apply here.

[00:20:00] Speaker 02:
The Supreme Court has held that that doctrine applies in exceptional circumstances, and there is nothing exceptional about this case.

[00:20:07] Speaker 02:
As the government just conceded, this litigation has been going on for the past two decades, and the government has actually been playing both sides of this issue

[00:20:16] Speaker 02:
in front of the trial court, most recently in 2022 when it argued the government control exception applies to an email proposal accepted by the DISA server, the same server at issue here.

[00:20:30] Speaker 02:
The case does not apply under NICA or NICA technologies because that case involved in an exceptional circumstance.

[00:20:38] Speaker 02:
The challenge in that case was to a statutorily required 100-day stay of performance during which GAO needs to issue a decision on a bid protest.

[00:20:50] Speaker 02:
GAO cannot exceed that 100-day deadline.

[00:20:54] Speaker 02:
Here, there's no statutorily imposed constraint on the government, and the government has put forth nothing in these briefs, or anywhere else in the record, to say why it exigently needed to award this contract, why it needed to move forward and amend the solicitation, let alone why it needed to award the contract to e-simplicity, which was the best value offered here.

[00:21:16] Speaker 02:
Your Honor, I'm very concerned by the government's statements up here that they intend to terminate e-simplicity, and I feel that that... I don't think they went that far.

[00:21:26] Speaker 02:
They said they'd like the opportunity to do that.

[00:21:29] Speaker 02:
Yes, Your Honor.

[00:21:30] Speaker 02:
And concerned by that as well, and I think not only is this case moot, but this court should dismiss this appeal as moot, to send a message to the government that it should not be playing, perhaps, jurisdictional games to keep its appeals alive with contractors and people, like E-Simplicity's approximately 40 employees on this work,

[00:21:51] Speaker 02:
whose livelihoods depend on this contract, and for the past 433 days have been operating under the threat of termination only if this court will reverse the Curio court's decision.

[00:22:06] Speaker 03:
Turning to the merits, what's the answer to my question that if we assume hypothetically that the government control exception applies, why does it matter whether the size limitation was a feature of the solicitation or not?

[00:22:21] Speaker 02:
Your Honor, I think if you determine that the government control exception may apply to email proposals, that is enough to affirm the case, and there's no investigation necessary.

[00:22:34] Speaker 03:
I mean, the bid reached a government circle, right?

[00:22:40] Speaker 03:
But it was then rejected and sent back.

[00:22:42] Speaker 02:
Yes, Your Honor.

[00:22:45] Speaker 02:
And to correct, I believe, maybe an omission or a misstatement up here by the government, the proposal not only reached the DISA server, it was then under the government's control there and passed on to the, quote, destination server.

[00:23:02] Speaker 02:
That's appendix 201.

[00:23:03] Speaker 02:
That's the agencies, the Navy's server.

[00:23:06] Speaker 02:
The destination is the Navy in this case.

[00:23:08] Speaker 03:
And then it was sent back.

[00:23:09] Speaker 02:
And then it was bounced back for being too large.

[00:23:12] Speaker 02:
But Your Honor, the question in this case is only whether, as a matter of regulatory interpretation, the government control exception may apply to email proposals.

[00:23:23] Speaker 02:
And once this court, interpreting the plain language of that exception, says it may apply to email proposals,

[00:23:28] Speaker 02:
The government was ordered on remand to go back and determine whether the elements of the government control exception render eSimplicity's proposal timely.

[00:23:40] Speaker 02:
It was remanded for that exact investigation to say, was it received, was it under the government's control, and did it reach the correct destination.

[00:23:50] Speaker 02:
If you determine that the legal issue applies, that the government control exception may apply, there's no remand that is necessary because on remand, you're affirming the correctness of the trial court's decision and its remand order.

[00:24:04] Speaker 02:
But then on remand, the government took a voluntary action.

[00:24:07] Speaker 02:
It did not comply with that remand order to perform an investigation.

[00:24:12] Speaker 02:
It rather went back and amended the solicitation and allowed any and all offers to submit revised proposals, including e-simplicity.

[00:24:22] Speaker 02:
So all that Your Honor needs to, or all that Your Honors need to do in this case is determine that the government control exception and the regulation may apply to e-mail proposals.

[00:24:35] Speaker 02:
And that's the end of the case.

[00:24:36] Speaker 02:
You can affirm the trial court's decision on that holding.

[00:24:39] Speaker 02:
And the issues that then took place after that are all the government's voluntary actions on remand.

[00:24:47] Speaker 02:
The government's whole idea at that point that it was compelled to do something is no longer a viable theory of this case.

[00:24:55] Speaker 02:
In fact, we don't believe that's a viable theory of this case anyway because the government was only compelled to reconsider and consider two issues respectively, and it chose to do something entirely different.

[00:25:09] Speaker 02:
The government control exception by its plain language applies to any offer.

[00:25:14] Speaker 02:
And that's clear from the plain text of this regulation.

[00:25:18] Speaker 02:
And nothing about the electronic commerce exception, a separate exception, does anything to modify that.

[00:25:25] Speaker 02:
FAR 52212-1F2I begins, any offer, it then continues, is that received at the government office designated in the solicitation after the exact time specified for receipt of offers is late and will not be considered unless it.

[00:25:47] Speaker 02:
that refers back to any offer, is received before an award is made.

[00:25:51] Speaker 02:
That's condition number one.

[00:25:52] Speaker 02:
The contracting officer determines that accepting the late offer would not unduly delay the acquisition.

[00:25:58] Speaker 02:
That's condition number two.

[00:26:00] Speaker 02:
And then the regulation includes an and and an em dash.

[00:26:04] Speaker 02:
And the and and the m dash lead into three additional exceptions, conditions for exceptions, separated by the word or.

[00:26:14] Speaker 02:
And the relevant exception here, after that 52212-f21,

[00:26:20] Speaker 02:
It says, there is acceptable evidence to establish that it was received at the government installation designated for receipt of offers.

[00:26:28] Speaker 02:
And that it refers back to any offer in the preceding text of the regulation.

[00:26:33] Speaker 02:
By its plain terms, the government control exception applies to any offer.

[00:26:38] Speaker 02:
The government wants this court, because of confusion between GAO and divergent trial court decisions for the past 20 years, to insert into this exception words that say, if it was transmitted through a means other than an electronic commerce method authorized by the solicitation, and then the rest of the exception in B. But that's not what this exception says.

[00:27:03] Speaker 02:
There is no part of the electronic commerce exception that changes the plain text of the government control exception in B, and no part of the regulation is rendered superfluous by reading this exception to apply to emailed as well as hand-delivered or paper proposals.

[00:27:25] Speaker 02:
Your Honor, if you have additional questions about the government control exception and its applicability, I'm happy to answer them.

[00:27:31] Speaker 03:
Okay.

[00:27:32] Speaker 03:
I don't see nothing.

[00:27:33] Speaker 03:
Thank you.

[00:27:34] Speaker 03:
Thank you, Your Honor.

[00:27:38] Speaker 03:
Ms.

[00:27:38] Speaker 03:
Moses.

[00:27:44] Speaker 01:
I want to clarify for the court that the Navy's position can hardly be characterized as voluntary.

[00:27:51] Speaker 01:
The court's injunction effectively demanded that the Navy create an opportunity for e-simplicity to compete for an award.

[00:28:00] Speaker 01:
The court enjoined the Navy from making an award and remanded the case for 60 days to reconsider whether eSimplicity's proposal was timely in light of the court's conclusion that the Navy's decision involved an application of unstated evaluation criterion.

[00:28:21] Speaker 01:
That was the first

[00:28:22] Speaker 01:
part of the order.

[00:28:23] Speaker 01:
Second, if that reconsideration did not lead to acceptance of eSimplicity's proposal, then the court further ordered the Navy to consider whether the government control exception would render eSimplicity's proposal timely to allow an identical resubmission of the proposal.

[00:28:43] Speaker 01:
Essentially, and then the last option was start the procurement from scratch.

[00:28:48] Speaker 01:
So given the very limited time that the Navy had

[00:28:52] Speaker 01:
to procure these services that were critically needed and for which no lapse in performance, they could afford no lapse in performance, the Navy did the best that it could given the very limited options it had in the very limited time frame in an attempt to comply with the trial court's directive.

[00:29:13] Speaker 01:
And a last point, Your Honor.

[00:29:15] Speaker 01:
Again, the best value should have been determined based upon the offerors who were properly within the competitive range.

[00:29:25] Speaker 01:
And just to clarify a factual point, which is reflected at appendix page 199, what the DISA tech said was that the message came into the government service, talking about DISA server.

[00:29:43] Speaker 01:
at a time equivalent to 3.27 p.m., approximately, and queued for delivery before being bounced back.

[00:29:52] Speaker 01:
When he's talking about being queued for delivery, queued for delivery to the Navy server, that next handoff, that was never achieved.

[00:30:00] Speaker 03:
Okay, I think we're out of time.

[00:30:02] Speaker 03:
Thank you very much.