Associated Energy Group, LLC, Dba Aeg Fuels v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ASSOCIATED ENERGY GROUP, LLC, DBA AEG
FUELS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1574
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-02158-AOB, Judge Armando O. Bonilla.
______________________
Decided: March 19, 2025
______________________
T ODD J OHN CANNI, Baker & Hostetler LLP, Los Ange-
les, CA, argued for plaintiff-appellant. Also represented by
K EVIN BARNETT , K EVIN D ORN, STEPHEN E. RUSCUS ,
K AITLYN ELIZABETH T OTH , Washington, DC.
D ANIEL B ERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BRIAN M. B OYNTON, P ATRICIA M. MCCARTHY , I OANA C.
MEYER , D OUGLAS K. MICKLE.
______________________
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ASSOCIATED ENERGY GROUP , LLC v. US 2
Before M OORE, Chief Judge, STOLL and CUNNINGHAM ,
Circuit Judges.
S TOLL , Circuit Judge.
In some cases, a pal is all you need. This is one of those
cases.
Appellant Associated Energy Group, LLC (“AEG”) has
initiated multiple bid protests concerning several contracts
managed by the U.S. Department of Defense, Defense Lo-
gistics Agency Energy (“DLA”) to deliver fuel to a U.S. mil-
itary base (Camp Lemonnier) and nearby airfield
(Chabelley Airfield) located in the Republic of Djibouti in
the Horn of Africa. This appeal concerns only whether
AEG has standing to bring its second bid protest in the U.S.
Court of Federal Claims (the “Claims Court”), challenging
a (now-expired) one-year sole-source bridge contract award
to the incumbent contractor. Because this issue is not moot
but AEG lacks standing, we affirm the Claims Court’s dis-
missal for lack of subject matter jurisdiction.
BACKGROUND
To provide fuel in Djibouti, a fuel supplier must have a
petroleum activity license or “PAL” issued by the Djibou-
tian government. In May 2022, DLA issued a solicitation
for a five-year contract with 24 line-items to supply fuel to
military bases throughout Africa, including Djibouti. In
January 2023, DLA awarded AEG four line-items. The or-
der period began in February 2023. During that same
month, AEG alerted DLA that officials within the Djibou-
tian Ministry of Energy and Natural Resources (“MOE”)
were:
preventing contract performance [by] [t]hreatening
AEG’s contracted fuel delivery truck drivers, in-
cluding [1] Ethiopia’s National Oil Company, NOC,
Djibouti [(“NOC”)] and [2] French fuel distributor
Rubis Djibouti [(“Rubis”)]; physically blocking AEG
contractors from picking up and delivering fuel to
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ASSOCIATED ENERGY GROUP , LLC v. US 3
the U.S. military installations; and declining or re-
fusing to issue or renew petroleum activity licenses
[(“PALs”)] to AEG and/or its contractors.
J.A. 8 ll. 6–17. Significant to this case, “it is undisputed
that neither AEG nor its Djiboutian fuel delivery contrac-
tors [i.e., NOC and Rubis] possess the required PAL.”
J.A. 22 ll. 11–13; J.A. 186 ll. 4–7 (“AEG, and its fuel deliv-
ery contractors, still do not have the required fuel trans-
portation licenses and nothing in the record suggests a
material change in status is imminent.”).
Several months later, DLA discovered that incumbent
contractor United Capital Investments Group, Inc.
(“UCIG”) was the only vendor with a valid MOE-issued
PAL. AEG alleges that “MOE officials have engaged and
continue to engage in a pay-to-play scheme, wherein Dji-
boutian Government officials decline to issue permits and
licenses to foreign companies, including AEG, who refuse
graft and bribe demands.”1 J.A. 11 ll. 12–16.
On September 1, 2023, DLA awarded a six-month sole-
source bridge contract to UCIG, with an additional six-
month option running through August 31, 2024. DLA in-
voked “U.S. national security interests in the region” to “is-
sue[] the noncompetitive sole source contract to UCIG
under [Federal Acquisition Regulation] 6.302-2 titled ‘Un-
usual and compelling urgency.’ In accordance with
FAR 6.302-2(a)(2), DLA did not publicize a notice of the
contract action or otherwise engage in full and open
1 As of the Claims Court’s February 2024 bench rul-
ing dismissing this case, AEG’s allegations “[we]re under
investigation” and “ha[d] not yet been proven, or even pros-
ecuted, by duly authorized government officials.” J.A. 186
l. 24–J.A. 187 l. 11.
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ASSOCIATED ENERGY GROUP , LLC v. US 4
competition.” J.A. 12 ll. 7–13; see 48 C.F.R. § 6.302-2.2
DLA’s purpose for the bridge contract was “to maintain an
adequate fuel supply to the two military installations”
while “the Djiboutian MOE considered and possibly
granted necessary licenses to other vendors,” among other
things. J.A. 12 ll. 14–21.
The bridge contract involved the delivery of three types
of petroleum products to Camp Lemonnier and Chabelley
Airfield in Djibouti. The solicitation for the sole-source
bridge contract provided that:
Offeror’s [sic] must possess ALL valid/current op-
erating certificates, permits, or equivalent licenses
required to operate in the prescribed jurisdiction.
The Djibouti Ministry of Energy is the sole author-
ity that can facilitate the latter stated require-
ments. Three (3) licenses must be submitted
with your offer to include; Patent License,
Commercial License, and Petroleum Activi-
ties License from the Djiboutian Ministry of
Energy.
J.A. 263 (citation omitted). Accordingly, the bridge con-
tract that AEG challenges here explicitly required bidders
to have a PAL, yet neither AEG nor its in-country suppliers
had one.
AEG initiated the bid protest at issue here, challenging
the sole-source bridge contract award to UCIG, on Decem-
ber 20, 2023. Importantly, AEG’s Claims Court Complaint
2 FAR 6.302-2 authorizes the award of emergency
contracts without full and open competition when an
agency’s need for the service acquired “is of such an unu-
sual and compelling urgency that the Government would
be seriously injured unless the agency is permitted to limit
the number of sources from which it solicits bids or pro-
posals.” 48 C.F.R. § 6.302-2(a)(2).
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ASSOCIATED ENERGY GROUP , LLC v. US 5
for this bid protest contains five counts: (1) DLA’s flawed
responsibility decision violated FAR Subpart 9.1 and was
arbitrary and capricious;3 (2) DLA’s claimed “urgency” for
the sole-source award was a byproduct of its own making
and failure to engage in advance planning; (3) DLA arbi-
trarily, capriciously, and unlawfully awarded a sole-source
bridge contract to UCIG without requesting offers from as
many potential sources as practicable; (4) DLA arbitrarily,
capriciously, and unlawfully awarded a sole-source bridge
contract to UCIG in violation of FAR 6.302-2(d) because
the 12-month period exceeds the time necessary; and
(5) the record demonstrates that preliminary and perma-
nent injunctive relief is appropriate.
Also significant here, AEG sought the following relief
from the Claims Court in its Complaint: (1) declare that
DLA’s sole-source contract to UCIG for fuel supply services
in Djibouti violates governing law and regulations; (2) en-
join DLA’s sole-source contract to UCIG and enjoin DLA
from making subsequent sole-source awards for such fuel;
(3) direct DLA to (a) terminate the sole-source contract to
UCIG, (b) conduct a full and open competition for interim
fuel supply services in Djibouti in accordance with the
Competition In Contracting Act (CICA) and FAR Sub-
part 9.1, and (c) engage in advance planning and account-
ing to avoid being in the position of issuing future sole-
source awards; and (4) award AEG its attorneys’ fees, ex-
penses, and costs.
3 FAR Subpart 9.1 requires that a contracting officer
make an affirmative determination of responsibility with
respect to the prospective awardee of a government con-
tract. See 48 C.F.R. § 9.100 et seq.; see id. § 9.103 (“Pur-
chases shall be made from, and contracts shall be awarded
to, responsible prospective contractors only. . . . No pur-
chase or award shall be made unless the contracting officer
makes an affirmative determination of responsibility.”).
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ASSOCIATED ENERGY GROUP , LLC v. US 6
Following oral argument on dispositive cross-motions,
the Claims Court ruled from the bench that AEG lacked
both Article III constitutional standing and Tucker Act
statutory standing to challenge the sole-source bridge con-
tract awarded to UCIG. Accordingly, the Claims Court dis-
missed AEG’s Complaint. AEG appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
We review the grant of a motion to dismiss for lack of
jurisdiction de novo. Inter-Tribal Council of Ariz., Inc.
v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). We
also review whether a party has standing to sue de novo.
Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307
(Fed. Cir. 2006). We review underlying factual findings for
clear error. REV, LLC v. United States, 91 F.4th 1156,
1163 (Fed. Cir. 2024).
“The Court of Federal Claims, though an Article I
court, . . . applies the same standing requirements enforced
by other federal courts created under Article III.” Weeks
Marine, Inc. v. United States, 575 F.3d 1352, 1359
(Fed. Cir. 2009) (omission in original) (citation omitted).
Article III standing, like mootness, is a threshold jurisdic-
tional issue. E.g., Canadian Lumber Trade All. v. United
States, 517 F.3d 1319, 1330–31 (Fed. Cir. 2008); North
Carolina v. Rice, 404 U.S. 244, 245–46 (1971). Tucker Act
standing is not jurisdictional. E.g., REV, 91 F.4th at 1163.
“[W]e may address jurisdictional issues in any order.” Kaw
Nation v. Norton, 405 F.3d 1317, 1323 (Fed. Cir. 2005).
I
We begin with mootness. On September 27, 2024, ap-
proximately two weeks before oral argument, the Govern-
ment filed a letter in which it provided the court with an
update on the bridge contract’s status: “[T]he ordering pe-
riod pursuant to the bridge contract expired on August 31,
2024, and DLA has not extended that ordering period. . . .
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ASSOCIATED ENERGY GROUP , LLC v. US 7
[T]he bridge contract allows for a 30-day ‘carry-over’ pe-
riod, . . . [which] ends on September 30, 2024, and will not
be extended.” ECF No. 59 (citation omitted). The Govern-
ment also explained that “DLA issued awards to three of-
ferors on September 26, 2024, and these awards will
supersede the bridge contract.” Id.
At oral argument, the Government asserted that this
case is moot due to the bridge contract’s expiration. Oral
Arg. at 23:11–40, https://oralarguments.cafc.us
courts.gov/default.aspx?fl=24-1574_10102024.mp3. AEG
argues that “this dispute falls within an exception to the
traditional mootness doctrine: claims capable of repeti-
tion, yet evading review.” Appellant’s Br. 44. As we have
explained:
To qualify for this exception, the challenged action
must meet two conditions. First, the action must
in its duration [be] too short to be fully litigated
prior to its cessation or expiration. Second, there
must be a reasonable likelihood that the party will
again suffer the [injury] that gave rise to the suit.
Torrington Co. v. United States, 44 F.3d 1572, 1577
(Fed. Cir. 1995) (alterations in original) (citations and in-
ternal quotation marks omitted). At oral argument, the
Government conceded that AEG’s action is capable of rep-
etition (and “in fact, has been repeated”), but argued that
AEG cannot meet the evasion-of-review requirement. Oral
Arg. at 23:38–24:01. Because the Government does not dis-
pute that AEG meets the second requirement above (repe-
tition), we focus on the first requirement (evasion of
review).
“‘[E]vading review’ means that the underlying action is
almost certain to run its course before either this court or
the Supreme Court can give the case full consideration.”
Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 787
(9th Cir. 2012) (citation omitted). The Supreme Court has
held that the mootness exception at issue applies to “short-
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ASSOCIATED ENERGY GROUP , LLC v. US 8
term” procurement contracts that “were fully performed in
less than two years after they were awarded.” Kingdom-
ware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016)
(“[A] period of two years is too short to complete judicial
review of the lawfulness of the procurement.”); see also,
e.g., In re Flint Water Cases, 53 F.4th 176, 189 (6th Cir.
2022) (citing Supreme Court case law and acknowledging
that twelve-, eighteen-, and twenty-four-month periods are
“too short to obtain complete review”). We agree with AEG
that its “bid protest falls within even shorter legal time con-
straints [than the two-year period discussed in Kingdom-
ware] because the procurement at issue is comprised of one
six-month base period and one six-month option – at most,
only one year.” Appellant’s Br. 46.
We thus hold that AEG meets both requirements of the
“capable of repetition, yet evading review” exception to
mootness. Accordingly, this case is not moot.
II
We proceed to analyze Article III standing, the only
other threshold jurisdictional issue presented.
Article III standing requires that a plaintiff
have: “(1) suffered an injury in fact, (2) that is fairly trace-
able to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial de-
cision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
“[A] plaintiff’s complaint must establish that he has a ‘per-
sonal stake’ in the alleged dispute . . . .” Raines v. Byrd,
521 U.S. 811, 819 (1997) (emphasis added). “To demon-
strate their personal stake, plaintiffs must be able to suffi-
ciently answer the question: What’s it to you?”
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (in-
ternal quotation marks and citation omitted).
AEG argued to the Claims Court that “the redressable
injury here for [AEG] is invalidating this [PAL] require-
ment, this solicitation, allowing [AEG] to bid.” J.A. 83
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ASSOCIATED ENERGY GROUP , LLC v. US 9
ll. 8–10. But in its Complaint, AEG did not challenge or
seek relief related to the bridge contract’s PAL require-
ment. When asked at oral argument where in the Com-
plaint AEG challenged the bridge contract’s inclusion of the
PAL requirement, counsel for AEG responded by listing
paragraph 64 in the Statement of Facts and para-
graphs 126–27 in Count II. Oral Arg. at 7:06–11:05.
The paragraphs cited by AEG do not challenge the PAL
requirement. First, in paragraph 64, part of the Statement
of Facts, AEG cites only to paragraphs 10 and 21 of the dec-
laration of U.S. Air Force Retired Colonel Todd Cheney
dated December 19, 2023 (Exhibit 1 to the Complaint). But
the Claims Court struck these and several other para-
graphs (7 through 44) of this declaration.4 Second, in par-
agraphs 126–27, AEG makes no mention of the PAL
requirement. In fact, AEG does not mention the PAL re-
quirement in any of its five claims, or as part of the relief
it seeks. See J.A. 410–22.
Accordingly, even if the Claims Court were to grant
AEG the relief sought in its Complaint such that DLA must
terminate the sole-source contract awarded to UCIG and
conduct a full and open competition for interim fuel supply
services in Djibouti, AEG would remain ineligible and un-
able to perform because AEG and its in-country suppliers
lack the PAL expressly required by the unchallenged con-
tract terms. See J.A. 188 ll. 5–9 (“[Even] if th[e Claims]
Court were to enjoin the performance of the bridge contract
to UCIG for whatever reason claimed by AEG and direct
the DLA contracting officer to resolicit the fuel delivery
contract, AEG would not be eligible for award.”). In other
words, regardless of whether AEG were to win or lose its
second bid protest, it could not bid on or compete for the
bridge contract. And, in contracting cases, the Supreme
4 On appeal, AEG does not challenge the Claims
Court’s decision to strike portions of this declaration.
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ASSOCIATED ENERGY GROUP , LLC v. US 10
Court has explained that “[t]o establish standing,” a plain-
tiff must “demonstrate that it is able and ready to bid on
contracts,” among other things. Ne. Fla. Chapter of Asso-
ciated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 666 (1993). As such, “[b]ecause [AEG] ha[s]
no concrete stake in the lawsuit, [it] lack[s] Article III
standing.” Thole v. U.S. Bank N.A., 590 U.S. 538, 542
(2020).
III
Even if AEG could establish Article III standing, we
would still affirm the Claims Court’s dismissal of AEG’s
second bid protest for lack of statutory standing.
The Tucker Act, 28 U.S.C. § 1491(b)(1), “imposes more
stringent standing requirements than Article III.” Weeks
Marine, 575 F.3d at 1359. To meet the Tucker Act’s more
stringent requirements, the plaintiff must make two sepa-
rate showings:
The party first must show that it is an “interested
party.” To satisfy the interested party require-
ment, a party must show that it (1) is an actual or
prospective bidder and (2) has a direct economic in-
terest in the procurement or proposed procure-
ment. To prove a direct economic interest, a party
must show that it had a substantial chance of win-
ning the contract.
The second standing requirement requires a party
show that it was prejudiced by a significant error
in the procurement process. To satisfy the preju-
dice requirement, the party must show that but for
the Government’s error, the party would have had
a substantial chance of securing the contract.
Diaz v. United States, 853 F.3d 1355, 1358–59 (Fed. Cir.
2017) (cleaned up) (citations omitted). Accordingly, “[t]o
establish statutory standing, and demonstrate it is an ‘in-
terested party’ and sustained prejudice, [AEG] must show
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ASSOCIATED ENERGY GROUP , LLC v. US 11
at least a substantial chance it would have been a prevail-
ing bidder under the [bridge contract s]olicitation had it not
been for the errors it contends plagued the procurement
process.” REV, 91 F.4th at 1163. “We review determina-
tions of standing under the Tucker Act de novo.” Id.; see,
e.g., Rex Serv. Corp., 448 F.3d at 1306–07 (citing Am. Fed’n
of Gov’t Emps. v. United States, 258 F.3d 1294, 1298
(Fed. Cir. 2001)). “Prejudice is a factual question that we
review for clear error.” Diaz, 853 F.3d at 1359; REV,
91 F.4th at 1163.
Emphasizing “AEG’s ineligibility to be awarded the
bridge contract due to the lack of the PAL,” the Claims
Court explained that “AEG lacks the requisite economic in-
terest in the solicitation because it did not have a substan-
tial chance, or any chance, of being awarded the bridge
contract.” J.A. 189 ll. 9–15. We agree. Moreover, as noted
in the discussion of Article III standing, the Claims Court
found that even if it were to grant AEG the relief sought in
its Complaint to remedy the alleged DLA errors, AEG
would still not be eligible for (and thus would have no sub-
stantial chance of winning) the award. We see no clear er-
ror in the Claims Court’s fact finding.
AEG argues that “the [Claims Court’s] position that
AEG lacked a substantial chance of award because AEG
does not have the PAL is in direct conflict with [our]
Court’s long-standing precedent that a protester need not
show it has a substantial chance of award despite the al-
leged errors.” Appellant’s Br. 42 (citation omitted); see
also Appellant’s Br. 43 (“[I]t was improper for the [Claims
Court] to evaluate AEG’s standing based on its compliance
with requirements that AEG was challenging as im-
proper . . . .”). AEG urges that it would have bid and “had
a substantial chance of award if DLA had conducted a com-
petitive lawful procurement and solicited proposals, did
not impose terms that require the payment of illegal bribes,
conducted a proper responsibility determination, and oth-
erwise conducted the procurement in accordance with
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ASSOCIATED ENERGY GROUP , LLC v. US 12
governing law and regulations.” Appellant’s Reply Br. 11
(emphasis added). But, again, in its Complaint AEG did
not challenge or seek removal of the PAL requirement in
the bridge contract.
As we described above, in its Complaint AEG claims
that DLA made the following errors: (1) its responsibility
decision violated FAR Subpart 9.1 and was arbitrary and
capricious; (2) it failed to engage in advance planning; (3) it
arbitrarily, capriciously, and unlawfully awarded a sole-
source bridge contract to UCIG without requesting offers
from as many potential sources as practicable; and (4) it
arbitrarily, capriciously, and unlawfully awarded a sole-
source bridge contract to UCIG in violation of FAR 6.302-
2(d). See J.A. 410–22. Even absent these alleged errors,
however, AEG would still not be able to secure the bridge
contract because it has no PAL and neither do its in-coun-
try suppliers. We thus agree with the Claims Court that
AEG lacks statutory standing under the Tucker Act.
CONCLUSION
We have considered AEG’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we con-
clude that an exception to mootness applies to this case and
that AEG lacks constitutional and statutory standing. We
thus affirm the Claims Court’s dismissal.
AFFIRMED
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