* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

(continued...)

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 29 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WHITLOCK CONSTRUCTION, INC.,

a Wyoming Corporation,

Plaintiff-Appellant,

v.

DANIEL R. GLICKMAN, in his

official capacity as Secretary of the

United States Department of

Agriculture; DERREL L. CARRUTH,

in his official capacity as Wyoming

State Director, Rural Development

Agency, United States Department of

Agriculture; WALLY BEYER, in his

official capacity as Administrator,

Rural Utility Service, a Division of the

Rural Development Agency, United

States Department of Agriculture;

JOHN E. COCHRAN, individually and

in his official capacity as Business and

Cooperatives Program Director for the

State of Wyoming Rural Utility

Service, a Division of the Rural

Development Agency, United States

Department of Agriculture,

Defendants-Appellees.

No. 00-8006

(D.C. No. 99-CV-69-B)

(D. Wyo.)

ORDER AND JUDGMENT *
*

(...continued)

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.

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Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 

Plaintiff Whitlock Construction, Inc. appeals the district court’s dismissal

of its complaint based on the absence of a live case or controversy under Article

III of the United States Constitution. Because we agree that plaintiff lacks

standing to pursue its claim, we dismiss this appeal.

Plaintiff is a construction company which bids often on public utility works

projects. In the summer of 1997, plaintiff bid on Phase II of a water supply

project being constructed by the South Big Horn County Water Supply Joint

Powers Board (Board) near Basin, Wyoming. The project was being funded by

loans and grants from the Rural Utility Service (RUS), which is an agency of the

Department of Agriculture, and by the Wyoming Water Development

Commission. As part of the funding arrangements, the two funding agencies had
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to concur in the selection of the bidder before the Board could enter into a

binding contract. 

When the Board opened the sealed bids on July 11, 1997, the lowest bidder

was Larry’s, Inc., followed by plaintiff. The Board determined that the bid by

Larry’s was deficient in several respects and decided to award the contract to

plaintiff, as the lowest responsible bidder. Representatives from the two funding

agencies questioned this decision, and the RUS delivered a letter advising the

Board that it could not concur with the decision to award the contract to plaintiff,

who was the second lowest bidder, because the Board had not provided sufficient

justification to show that Larry’s was not a responsible bidder. Based on the

RUS’ threat to withdraw funding, the Board decided to award the contract to

Larry’s, and the parties entered into a contract for Phase II of the project in

October 1997. 

In November 1997, plaintiff wrote the RUS protesting the award of the

contract to Larry’s. On March 3, 1999, plaintiff brought this suit for a review of

the RUS’s actions under the Administrative Procedure Act (APA), 5 U.S.C. § 702,

seeking a declaration that the RUS’ actions were illegal and an abuse of

discretion, and for damages against the RUS project administrator pursuant to

42 U.S.C. § 1983. The parties later agreed to dismiss the § 1983 action. 
1 The district court determined that Phase II had been completed based on

statements by the RUS’ attorney at the November 22, 1999 hearing, which

plaintiff did not dispute. Although in its reply brief plaintiff alludes to the lack of

hard evidence before the district court as to when Phase II was completed, it does

not argue that the court’s finding was incorrect. We therefore accept the finding

that Phase II was completed some time before the November hearing. 

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During a hearing on November 22, 1999, defendant’s attorney raised for the

first time the question of whether plaintiff’s injury was redressable in light of the

completion of Phase II of the water project. R. II, at 679-80. In response,

plaintiff’s attorney argued that the case had not become moot because contractors

such as plaintiff would not bid on future projects if they doubted the fairness of

the RUS, and that it was in the public interest to resolve the issue of the RUS’

authority. Id. at 680-82. At the end of the hearing the district court noted its

concern whether it could redress plaintiff’s injury, and took the matter under

advisement. On December 21, 1999, the district court issued an order dismissing

plaintiff’s case for lack of standing, based on its lack of a redressable injury once

Phase II of the project had been completed.1

On appeal, plaintiff has moved to supplement the record with deposition

transcripts and an affidavit relating to the standing issue, arguing it was not given

an opportunity to submit such evidence to the district court. Defendant opposes

the motion because the documents were not before the district court. Under

ordinary circumstances, it would be inappropriate to consider such documents for
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the first time on appeal. See Lewis v. Continental Bank Corp., 494 U.S. 472,

480-82 (1990) (denying appellant’s motion to supplement record to establish

standing with an affidavit stating appellant’s future intent, but remanding for

parties to submit evidence on appellant’s continued concrete interest in the

controversy). Here, however, plaintiff’s affidavit and deposition testimony

simply support the argument that was made to, and was rejected by, the district

court. In light of when the standing issue was raised in this case, we will allow

plaintiff to supplement the record to permit a full determination.

We review the district court’s standing ruling de novo. Cache Valley Elec.

Co. v. Utah Dep’t of Transp., 149 F.3d 1119, 1122 (10th Cir. 1998). To

demonstrate standing, a party must show three things:

(1) injury in fact, by which we mean an invasion of a legally

protected interest that is (a) concrete and particularized, and

(b) actual or imminent, not conjectural or hypothetical, (2) a causal

relationship between the injury and the challenged conduct, by which

we mean that the injury fairly can be traced to the challenged action

of the defendant, and has not resulted from the independent action of

some third party not before the court, and (3) a likelihood that the

injury will be redressed by a favorable decision, by which we mean

that the prospect of obtaining relief from the injury as a result of a

favorable ruling is not too speculative. These elements are the

irreducible minimum required by the Constitution.

Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville, Fla., 508 U.S. 656, 663-64 (1993) (quotations and citations

omitted).
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Plaintiff argues that his unwillingness to bid on future offerings is a

cognizable injury stemming from the RUS’ conduct, and that a declaratory

judgment that the RUS exceeded its authority in this case will redress that injury

so that plaintiff can, once again, competitively bid on future RUS projects. In

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211-12 (1995), the Supreme

Court held that a disappointed bidder for a government contract had standing to

seek “forward-looking relief” based on a showing that sometime in the relatively

near future it would bid on another government contract which would contain the

same provision as that challenged by the prospective litigant. 

The circumstances in our case are significantly different from those in

Adarand. There, the plaintiff was challenging an ongoing federal program

designed to provide highway contracts to small businesses controlled by socially

and economically disadvantaged individuals. Id. at 206-09. The plaintiff

therefore was able to show that it faced a concrete risk of similar treatment by the

agency in the immediate future. 

Here, in contrast, plaintiff seeks a declaration that under the specific facts

of its case, the agency abused its discretion by overriding the Board’s decision

that Larry’s was not a responsible bidder and by making ex parte arrangements

with Larry’s to revise its bid. Even if we assume that the agency abused its

discretion, plaintiff has not shown a “concrete” and “imminent” risk that it will
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again be the second lowest bidder for a project funded by the RUS; that the

lowest bidder will submit a bid with the same types of deficiencies as those in

Larry’s bid; that the board in charge of awarding contracts will reject the low

bidder’s bid; and that the RUS will again conclude that the board’s rejection was

not sufficiently justified and will make a separate arrangement with the low

bidder. Such a possibility is too speculative to show an actual controversy in this

case. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding

plaintiff who had been subjected to an allegedly illegal chokehold lacked standing

to seek forward-looking equitable relief because he did not “establish a real and

immediate threat that he would again be stopped for a traffic violation, or for any

other offense, by an officer . . . who would illegally choke him into

unconsciousness without any provocation or resistance on his part”). 

Plaintiff’s withholding of its bids in the future because of its subjective

distrust of the agency’s impartiality does not demonstrate a sufficient injury. See

id. at 107 n.8 (“It is the reality of the threat of repeated injury that is relevant to

the standing inquiry, not the plaintiff’s subjective apprehensions. The emotional

consequences of a prior act simply are not a sufficient basis for [prospective

relief] absent a real and immediate threat of future injury by the defendant.”).
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For the foregoing reasons, the appeal is DISMISSED.

Entered for the Court

Michael R. Murphy

Circuit Judge