* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 d istrict court’s dismissal of its complaint based on the absence of a live cas e or controversy under Article III of the United States Constitution. Because we agree that plaintiff lacks standing to pursue its claim, we dismiss this appea l. Plaintiff is a construction company which bids ofte n 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 proj ect was being funded by loans and grants from the Rural Utility Service (RU S), which is an agency of the Department of Agriculture, and by the Wyoming WaterDevelopment Commission. As part of the funding arrangements, the two funding agencies had-3-

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, 1 997, the lowest bidder was Larry’s, Inc., followed by plaintiff. The Boar d determined that the bid by Larry’s was deficient in several respects and decid ed to award the contract to plaintiff, as the lowest responsible bidder. Repre sentatives from the two funding agencies questioned this decision, and the RUS deli vered 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 Boardhad not provided sufficient justification to show that Larry’s was not a respon sible 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 fo r Phase II of the project in October 1997. In November 1997, plaintiff wrote the RUS protestin g the award of the contract to Larry’s. On March 3, 1999, plaintiff b rought this suit for a review of the RUS’s actions under the Administrative Procedur e Act (APA), 5 U.S.C. § 702, seeking a declaration that the RUS’ actions were il legal and an abuse of discretion, and for damages against the RUS projectadministrator pursuant to 42 U.S.C. § 1983. The parties later agreed to dism iss the § 1983 action.1 The district court determined that Phase II had bee n completed based on

statements by the RUS’ attorney at the November 22, 1999 hearing, which plaintiff did not dispute. Although in its reply b rief 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 No vember hearing. -4- During a hearing on November 22, 1999, defendant’s attorney raised for the first time the question of whether plaintiff’s inju ry 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 b ecome 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 districtcourt noted its concern whether it could redress plaintiff’s injury , and took the matter under advisement. On December 21, 1999, the district cou rt 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 re cord with deposition transcripts and an affidavit relating to the standi ng issue, arguing it was not given an opportunity to submit such evidence to the distr ict court. Defendant opposes the motion because the documents were not before th e district court. Under ordinary circumstances, it would be inappropriate t o consider such documents for-5-

the first time on appeal. See Lewis v. Continental Bank Corp. , 494 U.S. 472, 480-82 (1990) (denying appellant’s motion to supple ment record to establish standing with an affidavit stating appellant’s futu re intent, but remanding for parties to submit evidence on appellant’s continuedconcrete interest in the controversy). Here, however, plaintiff’s affidavitand deposition testimony simply support the argument that was made to, and w as rejected by, the district court. In light of when the standing issue was rai sed 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 n ovo. 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 thing s: (1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particu larized, and (b) actual or imminent, not conjectural or hypothet ical, (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 ind ependent action of some third party not before the court, and (3) a li kelihood that the injury will be redressed by a favorable decision, b y which we mean that the prospect of obtaining relief from the inju ry as a result of a favorable ruling is not too speculative. These el ements are the irreducible minimum required by the Constitution. Northeastern Fla. Chapter of Associated Gen. Contra ctors of Am. v. City of Jacksonville, Fla. , 508 U.S. 656, 663-64 (1993) (quotations and citat ions omitted).-6-

Plaintiff argues that his unwillingness to bid on f uture offerings is a cognizable injury stemming from the RUS’ conduct, and that a declaratory judgment that the RUS exceeded its authority in thi s case will redress that injury so that plaintiff can, once again, competitively bi d 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 governm ent contract had standing to seek “forward-looking relief” based on a showing th at sometime in the relatively near future it would bid on another government contract which would contain the same provision as that challenged by the prospectiv e litigant. The circumstances in our case are significantly dif ferent from those in Adarand . There, the plaintiff was challenging an ongoing federal program designed to provide highway contracts to small busi nesses 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 th at under the specific facts of its case, the agency abused its discretion by ov erriding 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” an d “imminent” risk that it will-7-

again be the second lowest bidder for a project fun ded 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 c ontracts 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 s how 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 il legal 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 fora traffic violation, or for any other offense, by an officer . . . who would illega lly choke him into unconsciousness without any provocation or resistan ce on his part”). Plaintiff’s withholding of its bids in the future b ecause of its subjective distrust of the agency’s impartiality does not demo nstrate a sufficient injury. See id. at 107 n.8 (“It is the realityof the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjectiv e apprehensions. The emotional consequences of a prior act simply are not a suffic ient basis for [prospective relief] absent a real and immediate threat of futur e injury by the defendant.”).-8-

For the foregoing reasons, the appeal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge