Glover Construction v. Babbitt ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
GLOVER CONSTRUCTION CO.,
INC.,
Plaintiff-Appellant,
v. No. 97-7122
(D.C. No. 95-CV-467-B)
BRUCE BABBITT, Secretary of (E.D. Okla.)
Department of Interior,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL, BRISCOE, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the
case is ordered submitted without oral argument.
Plaintiff Glover Construction Company brought this action alleging
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant failed to require the Bureau of Indian Affairs to require the Cherokee
Nation to abide by the provisions of the Federal Acquisition Regulations (FARS),
48 C.F.R. § 1 et seq . The district court denied Glover Construction’s request for
injunctive relief and dismissed the action. We dismiss this appeal on mootness
grounds, and do not address the more difficult questions of standing and
jurisdiction.
On June 15, 1995, the Cherokee Nation of Oklahoma began soliciting bids
for construction of “Greasy Road.” Four construction companies responded to the
bid: Mouache-Capote Construction, Frix Foster Construction, Hub Construction,
and Glover Construction. At the bid unsealing, the bid of Hub Construction was
rejected as nonresponsive to the solicitation. The bid of Mouache-Capote was the
lowest, followed by the bid of Frix Foster Construction, and then Glover
Construction. Although the bid of Mouache-Capote failed to include unit prices,
its bid did include the number of units and the total price for each specific item.
Thus, the unit price was readily ascertainable from the face of the bid. The
Cherokee Nation did not reject the bid of Mouache-Capote as nonresponsive
under 48 C.F.R. § 14.301, but allowed it to correct its bid. The contract was
awarded to Mouache-Capote.
Glover Construction filed this action, contending defendant, through the
Bureau of Indian Affairs (BIA), failed to require the Cherokee Nation to adhere to
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federal procurement standards. The Cherokee Nation was allegedly bound by
such regulations after negotiating for their application in accordance with 25
U.S.C. § 458cc(e). Glover Construction sought injunctive relief requiring
defendant to direct the BIA to order the Cherokee Nation to set aside the bid of
Mouache-Capote Construction as nonresponsive and to rebid the project in
accordance with federal standards. In its amended complaint, Glover
Construction alleged that during construction of the road the Cherokee Nation had
permitted Mouache-Capote Construction to increase the contract price by over
$100,000 without requiring bids, which was not in accordance with the contract
modification requirements of FARS and 41 U.S.C. § 254b. The district court held
the failure to explicitly list unit prices was not a material alteration, but was a
correctable “minor irregularity” under the regulations, and that Glover
Construction was not entitled to injunctive relief because it had not shown
irreparable harm.
The Greasy Road was completed no later than May 20, 1997. Therefore,
Glover Construction’s claims for injunctive relief to require rebidding for the
contract award and for subsequent contract modifications are moot. See
Columbian Rope Co. v. West , 142 F.3d 1313, 1316 (D.C. Cir. 1998);
Neighborhood Transp. Network, Inc. v. Pena , 42 F.3d 1169, 1171-72 (8th Cir.
1994).
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The only remaining issue is Glover Construction’s request for an injunction
requiring defendant to direct the Cherokee Nation to abide by the regulations
during future bidding of projects. In essence, Glover Construction assumes the
situation that occurred here will be exactly replicated in the future and asks that
an injunction issue now to insure it is protected later.
These circumstances do not present an ongoing case or controversy over
which this court may exercise jurisdiction under Article III. See Jones v.
Temmer , 57 F.3d 921, 922 (10th Cir. 1995). At best, Glover Construction’s
argument is construed as one invoking the “capable of repetition, yet evading
review” exception to the mootness doctrine. See Fischbach v. New Mexico
Activities Ass’n , 38 F.3d 1159, 1161 (10th Cir. 1994). That exception does not
save the claim as there is no “reasonable expectation” that Glover Construction
will suffer the same injury, see West , 142 F.3d at 1317, and no reason for this
court to assume the issue is not capable of meaningful review if Glover
Construction is subjected to the same allegedly unlawful treatment in the future,
see Pena , 42 F.3d at 1172. See also Jones , 57 F.3d at 923 (rejecting argument
that claim is not moot based on possibility that legislature could reinstate law as
“too conjectural and speculative to avoid a finding of mootness”).
We add that Glover Construction’s request for injunctive relief is nothing
more than an artfully phrased prayer for the court to require Cherokee Nation to
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obey the law in the future. Such injunctions are not appropriately issued. See
Hughey v. JMS Dev. Corp. , 78 F.3d 1523, 1531 (11th Cir. 1996) (“[A]ppellate
courts will not countenance injunctions that merely require someone to obey the
law.”) (internal quotation omitted); Epstein Family Partnership v. Kmart Corp. , 13
F.3d 762, 771 (3d Cir. 1994) (recognizing while “an injunction may be framed to
bar future violations that are likely to occur, . . . [b]road non-specific language
that merely enjoins a party to obey the law or comply with an agreement . . . does
not give the restrained party fair notice of what conduct will risk contempt”)
(internal quotation omitted).
Glover Construction’s appeal is DISMISSED as moot.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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