Glenn Defense Marine (asia), Pte Ltd. v. United States

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

GLENN DEFENSE MARINE (ASIA), PTE LTD.,
Plaintiff-Appellant,

v.
UNITED STATES,
Defendant-Appellee.

2011-5071

\-

Appeal from the United States Court of Federal
Claims in case no. 10-CV-852, Judge Frances M. Allegra.

## ON MOTION

Before LOURIE, PROST, and MOORE, Circuit Judges.
MOORE, Circuit Judge.

## ORDER

Glenn Defense Marine (Asia), Pte Ltd. ("Glenn De-
fense") appeals from a judgment of the United States Court
of Federal Claims. We dismiss the appeal as moot.

I.

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On May 6, 2010, the United States Navy ("Navy") solic-
ited proposals to provide indefinite-delivery, indefinite-
quantity (IDIQ) husbanding services for Navy ships in four
ports in the Philippines.

The solicitation stated that the work was to be subdi-
vided among four ports: (1) Manila, (2) Subic Bay, (3)
Puerto Princesa, and (4) Cebu. The solicitation requested
that bidders indicate the "unit prices for all contract items,"
and that pricing proposals were to be based on the bidder's
proposals for each port.

Navy designated three companies that submitted pro-
posals as technically acceptable. These companies were
Glenn Defense, Inchcape, and Global.

The Contracting Officer (CO) drafted a Business Clear-
ance Memorandum (BCM) on August 12, 2010, that indi-
cated the contract was a single IDIQ contract to be
awarded pursuant to a "Lowest Price Technically Accept-
able Source Selection Process," and that Glenn Defense
was the "lowest total price offeror."

In the final BCM, however, the CO stated that while
Glenn Defense had submitted the lowest, technically
acceptable, total price offer, Global had submitted the
lowest, technically acceptable offer on the Manila and
Subic Bay ports. The CO split the contract award with the
Manila and Subic Bay ports being awarded to Global and
the Puerto Princesa and Cebu ports being awarded to
Glenn Defense.

After Glenn Defense's bid protest was denied by the
Government Accountability Office, it filed a complaint at
the Court of Federal Claims seeking, inter alia, to enjoin
the Government from awarding the contract to Global,
arguing that the solicitation mandated a single supplier of
services.

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In its decision from which Glenn Defense seeks our re-
view, the trial court determined that the solicitation re-
served Navy's right to award either a single contract
covering all four ports, or multiple contracts covering one to
three ports. Having concluded that the Navy's split award
decision was not contrary to law, the court denied Glenn
Defense's requested relief.

After Glenn Defense filed its notice of appeal, however,
Navy declined its option to continued performance by
Global, and instead awarded a contract to Glenn Defense
for husbanding services on all four ports.

II.

We agree with the Government that Navy's subsequent
award of all four ports to Glenn Defense moots this appeal.

Under Article III of the Constitution, federal courts
may adjudicate only actual, ongoing cases or controversies.
Deakins v. Monaghan, 484 U.S. 193, 199 (1988). "The
case-or-controversy requirement subsists through all
stages of federal judicial proceedings, trial and appellate."
Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). The
parties must therefore continue to have a "personal stake
in the outcome" of the lawsuit. Los Angeles v. Lyons, 461
U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)).

In analogous circumstances to this case, this court in
Gibraltar Indus., Inc. v. United States, 726 F.2d 747 (Fed.
Cir. 1984) dismissed the appeal of a contractor seeking
review of a decision dismissing its bid protest regarding a
small business set aside procurement. There, an appeal to
enjoin the award of the contract to another party was
mooted after the contractor on appeal was recertified as a
small business concern and awarded the contract it sought
to enjoin. Similarly here, Glenn Defense seeks to enjoin a
contract for performance of services that it has now been

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awarded. Thus, as in Gibraltar Indus., there is no actual,
ongoing case or controversy for us to decide.

Glenn Defense asserts two arguments for why this ap-
peal is not rendered moot by the award of the contract for
performance of husbanding services for the Manila and
Subic Bay ports, neither of which is persuasive.

Glenn Defense first argues that the appeal is not moot
because the Court of Federal Claims can award bid prepa-
ration and proposal costs that were wasted by competing
for this illegal and unfair contract award. The law is clear,
however, that when a court seeks to determine whether a
claim is moot because the claim has been satisfied, the
proper focus is on whether the plaintiff's principle claim
has been resolved, not on whether ancillary expenses have
been paid or have accrued. As the Supreme Court stated in
Diamond v. Charles, 476 U.S. 54, 70-71 (1986), "the fact
that continued adjudication would provide a remedy for an
injury that is only a byproduct of the suit itself does not
mean that the injury is cognizable under Article III."

Glenn Defense also argues that given the short one-
year duration of the contract, there is a reasonable expec-
tation that the procurement violation will reoccur.

What is commonly called the "capable of repetition, yet
evading review" exception to the mootness doctrine re-
quires that (1) the changed action is in its duration too
short to be fully litigated prior to its cessation or expira-
tion, and (2) there is a reasonable expectation that the
same complaining party would be subjected to the same
action. Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

We are not satisfied that both elements are present in
this case. Even if the Navy is likely to continue to use
solicitations for multiple-lot contracts for naval husbanding
services and Glenn Defense is likely to continue to bid on
them, we do not see why the refusal to award a single

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contract rather than a split award contract is the sort of
action that is likely forever to "evade review." Lewis v.
Cont'l Bank Corp., 494 U.S. 472, 481 (1990).

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted. The appeal is
moot.

(2) Each side shall bear its own costs.

FOR THE COURT

FEB 06 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk -

cc: David S. Black, Esq.
P. Davis Oliver, Esq.
s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 06 2012

Issued As A Mandate:

FEB 06 2012

JAN HORBALY
CLERK