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 Justice, 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 Office 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 regarding 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 written debriefing is supplied (unless, as discussed below, the 

protestor submits additional questions), we reverse. 

I

The Army Corps of Engineers issued a request for proposals 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 request 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 postCase: 20-1924 Document: 15 Page: 2 Filed: 02/04/2021
NIKA TECHNOLOGIES, INC. v. UNITED STATES 3

award debriefing, additional questions related to the debriefing.” 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 mootness 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 adverse legal interests’” it is generally moot).

However, there is an exception to the mootness doctrine 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 complaining 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 

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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 regarding 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 judicial review before the case would be rendered moot).

B

This issue is also capable of repetition. “[T]he capableof-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] demonstrated that a recurrence of the dispute was more probable 

than not.” Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (emphasis 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 (alteration in original). In 2019, there were 2,198 bid protests at 

the GAO, many of which involved potential stays on procurement. U.S. Gov’t Accountability Off., GAO-20-220SP, 

GAO Bid Protest Annual Report to Congress for Fiscal 

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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 protests.

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 respect 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 debriefing 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 after 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 singular 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 debriefing, 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 occurred.

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 opportunity for a disappointed offeror to submit, within two business 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 debriefing 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 mandates 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 additional questions submitted “[t]he agency shall not consider 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, rather 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 Department of Defense, the 5-day period described in subparagraph (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 reverse the decision of the Court of Federal Claims. 

REVERSED

No costs.

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