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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2003 Decided October 28, 2003

No. 02-5265

LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.,

APPELLANT

v.

SPENCER ABRAHAM, SECRETARY,

UNITED STATES DEPARTMENT OF ENERGY AND

DEPARTMENT OF ENERGY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00269)

James L. Feldesman argued the cause for appellant. With

him on the briefs were Eugene R. Fidell, Kathy S. Ghiladi,

David G. Hetzel, Michael F. McBride, John W. Lawrence,

and R. Kenly Webster.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Harold D. Lester, Jr., Assistant Director, U.S. Department

of Justice, argued the cause for appellees. With him on the

brief was David M. Cohen, Director. Kenneth S. Kessler,

Monica J. Palko, and Peter D. Keisler, Attorneys, U.S.

Department of Justice, entered appearances.

Before: SENTELLE, ROGERS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The law partnership of LeBoeuf,

Lamb, Greene & MacRae, L.L.P. (‘‘LeBoeuf’’) appeals the

denial of its request for a direct award of a government

contract and the grant of summary judgment to the Department of Energy. LeBoeuf protested the Department’s award

of a contract for outside legal services to another law firm

and now contends that the district court erred in finding that

its award request was moot and in granting summary judgment in view of a material issue of disputed fact as to whether

the Department complied with procurement regulations. We

vacate the judgment and remand the case to the district court

to determine (1) whether the Department adequately considered the apparent conflict of interest as required by federal

and Departmental regulations, and (2) whether the Department’s need for expert legal services on the Yucca Mountain

Project can support a direct award of the contract to LeBoeuf

or an award of other relief.

I.

Three contracts are relevant to this appeal. All of the

contracts relate to the Department’s plans to obtain an operating license from the United States Nuclear Regulatory

Commission (‘‘NRC’’) for the Yucca Mountain Nuclear Waste

Repository site in Nevada (‘‘Yucca Mountain Project’’). See

Nuclear Waste Policy Act of 1982 (codified as amended at 42

U.S.C. §§ 10101–10270 (1987)). Under the Act, the Department must issue guidelines for the recommendation of sites

for a permanent repository, nominate sites for site characterization to be approved or disapproved by the President, and

once a site is chosen, seek a license from the NRC to

construct and operate the repository. Id. §§ 10132–10145.
3

The first contract was entered into by the Department in

1991 with TRW Environmental Safety Systems, Inc.

(‘‘TRW’’). Under the TRW Contract, TRW was the management and operations contractor for the Yucca Mountain Project. In that capacity, TRW was to conduct studies to

determine the suitability of the site as a repository, and

thereby assist the Office of Civilian Radioactive Waste Management (‘‘OCRWM’’) in developing an integrated radioactive

waste management system for the storage and ultimate disposal of spent nuclear fuel and high-level radioactive waste in

a manner that protects public health and safety and the

environment. See id. § 10134.

The second contract, a subcontract, was entered into by

TRW in 1992 with the law firm of Winston & Strawn (‘‘Winston’’). Under the TRW Subcontract, Winston was to provide

expert legal services to ensure that TRW performed in

accordance with NRC regulations and guidelines. Winston’s

statement of work covered both consulting services and legal

advice and counseling. TRW’s request for proposals (‘‘RFP’’)

stated that to be eligible, a contractor had to make a ‘‘[c]ommitment not to engage in activities that would appear to or

actually conflict with the interests of TRW.’’

The third contract—the Yucca Mountain contract—

stemmed from a RFP issued by the Department on May 27,

1999. Because its Office of General Counsel (‘‘OGC’’) lacked

the relevant expertise, the Department sought expert legal

counsel to provide ‘‘professional legal advice and assistance’’

to the OGC ‘‘involving matters related to the licensing activities’’ of the OCRWM for the Yucca Mountain Project. The

scope of work potentially involved review of work performed

by Winston for TRW under the TRW Subcontract. The RFP

required that bidders be qualified and eligible under applicable laws and regulations and to disclose any conflicts of

interest. Additionally, the RFP required that bidders have

special NRC expertise and that attorneys chosen to work on

the Yucca Mountain Project be active members of at least one

State bar. The RFP was based on a ten-year period of

performance.
4

Prior to awarding the Yucca Mountain contract, the Department recognized the importance of avoiding the appearance of a conflict of interest in hiring expert counsel. The

Department created a special conflict of interest provision

disqualifying law firms that, within the preceding five years,

had represented a party against the Department in litigation

relating to the ‘‘Standard Contract For Disposal of Spent

Nuclear Fuel And/Or High–Level Radioactive Waste.’’ 10

C.F.R. § 961.11. In that connection, the Department recognized that it was statutorily obligated to serve a broader

public interest than an interested party. The Head of Contracting Activity in the Office of Headquarters Procurement

Services (‘‘HCA’’) stated in his decision of July 30, 1999

denying the protest of a law firm as a potential bidder on the

1999 RFP, that notwithstanding the fact that ‘‘utilities and

[the Department] both have an interest in having the license

issued quickly,’’ under the Nuclear Waste Policy Act, the

Department ‘‘serves a broader interest of protecting the

environment and public health.’’ See 42 U.S.C. § 10131(a)(4),

(5). In other words, the Department’s statutory responsibilities might require action that a utility would oppose, such as,

for example, a Department decision imposing stricter controls

that would increase the utility’s operating costs. The HCA

observed that ‘‘[t]his difference is the source of the divergence in interests TTT that gives rise to the various potential

conflicts of interest,’’ which ‘‘cannot be mitigated simply by

imposing a firewall [within the law firm] for the protection of

[the Department’s] confidential information.’’ Protest Decision of July 30, 1999 at 5.

Only two law firms, LeBoeuf and Winston, submitted bids.

Pursuant to the conflicts disclosure requirement of the Department’s Acquisition Regulations (‘‘DEAR’’), see § 952.209–

8, 48 C.F.R. § 952.209–8, Winston stated that ‘‘[n]o actual or

potential conflict of interest or unfair competitive advantage

exists under the TRW Subcontract.’’ Based on the information provided by Winston, a technical advisory committee and

the contracting officer concluded that Winston’s prior work

for TRW did not present an organizational conflict of interest

barring its award of the contract. The Department an-
5

nounced the award to Winston, as the low bidder by over $3.6

million, in September 1999. The contract was for a five-year

term, renewable in segments for a total of ten years.

LeBoeuf filed an administrative appeal alleging that Winston had an organizational conflict of interest (‘‘OCI’’). The

Department denied the appeal, stating that the Yucca Mountain contract was a replacement for the TRW Subcontract

and the statement of work was substantially similar to the

statement of work under the TRW Subcontract. Subsequently, the General Accounting Office (‘‘GAO’’), by decision of

February 3, 2000, denied LeBoeuf’s bid protest. GAO concluded that Winston did not have a conflict of interests in

light of the Department’s Revised Management Plan for the

development of the licensing application designating the OGC,

and not Winston, as the entity to provide ‘‘concurrence review’’ before the application was filed with the NRC. ‘‘Concurrence review,’’ which was part of the Department’s quality

assurance review, involved review of the license application to

assure conformance with NRC laws and regulations, which,

given OGC’s lack of expertise, LeBoeuf claimed would have to

be performed by Winston, creating a conflict of interests.

However, GAO found that Winston did not have a disqualifying OCI because the Department was ultimately responsible

for review of the licensing application and the Yucca Mountain contract involved a continuation of work that Winston

had performed under the TRW Subcontract.

In March 2000, LeBoeuf filed suit against the Department

in the federal court in Nevada for declaratory and injunctive

relief; that court transferred the case to this district in

January 2001. In its complaint, LeBoeuf alleged that the

Department acted arbitrarily and capriciously and contrary to

its own regulations in awarding the Yucca Mountain contract

to Winston because Winston had a disqualifying conflict of

interest stemming from the TRW Subcontract. LeBoeuf

requested that the district court directly award it the balance

of the work remaining under the Yucca Mountain contract,

along with its bid proposal and preparation costs.
6

Winston provided legal services to the Department for two

years under the Yucca Mountain contract, until November 29,

2001. At that time, Winston and the Department mutually

agreed to cancel the contract. Only a few weeks before, a

November 13, 2001 report of the Department’s Inspector

General concluded that Winston had violated the OCI provision of the contract by failing to disclose its lobbying and nonlobbying activities for the Nuclear Energy Institute, a nuclear

industry trade group whose members include commercial

utilities that would send spent nuclear waste to the Yucca

Mountain site. Following the termination of the Yucca

Mountain contract, the parties filed cross-motions for summary judgment.

The district court denied LeBoeuf relief. It ruled that

LeBoeuf’s request for a direct award of the Yucca Mountain

contract was moot because the contract had been terminated

in November 2001 and any new RFP for expert legal services

would be for different services in view of the work done by

Winston. The court granted the Department’s motion for

summary judgment, concluding that it had adequately examined Winston’s potential conflict of interests, that the Nevada

Code of Professional Conduct did not fall within the Federal

Acquisition Regulations’s reference to ‘‘applicable law and

regulations,’’ and that LeBoeuf had failed to show that the

Department acted in bad faith in awarding the contract to

Winston.

II.

LeBoeuf’s position before the Department, GAO, and the

district court was that Winston was barred from being awarded the Yucca Mountain contract under federal and Department procurement regulations, applicable state bar rules, and

the terms of its earlier commitments to TRW, whose interests

in the approaching NRC licensing proceeding were, according

to LeBoeuf, ‘‘virtually certain to be adverse to the [Department’s interests].’’ Appellant’s Brief at 10. On appeal, LeBoeuf renews its position, contending that the district court

erred in granting summary judgment where the Department

merely accepted at face value Winston’s no-conflicts assertion

and failed to take into account any of the factors that disquali-
7

fied Winston. LeBoeuf also contends that the district court

erred in ruling that LeBoeuf’s request for a direct award of

the contract was moot inasmuch as the court was unable to

determine on the basis of the record that the Department

would not employ expert counsel to complete work that

Winston had begun, failed to grant LeBoeuf a reasonable

opportunity to probe and dispute the Department’s claims

that it would not use substitute expert counsel, and disregarded the material issue of fact on that issue presented by

LeBoeuf.

‘‘The court’s role in reviewing agency contract decisions is

limited to determining whether the agency acted in accord

with applicable statutes and regulations and had a rational

basis for its decisions.’’ Delta Data Systems Corp. v. Webster, 744 F.2d 197, 204 (D.C. Cir. 1984). As with other agency

cases, our review is limited to the administrative record, 28

U.S.C. § 1491(b), 5 U.S.C. § 706 (1964 ed., Supp. V), and the

agency is entitled to a presumption of regularity. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415

(1971), overruled on other grounds, Califano v. Sanders, 430

U.S. 99, 105 (1977). The Supreme Court has cautioned

reviewing courts against imposing their own views of proper

procedures upon agencies and ‘‘improperly intrud[ing] into

the agency’s decisionmaking process,’’ Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519,

525 (1978), an approach that has been deemed particularly

warranted in the area of government procurement contracts.

Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1270 (5th Cir.

1978). As this court has noted, because agency procurement

decisions implicate the agency’s ‘‘technical expertise,’’ the

court’s review is highly deferential. Multimax, Inc. v. Fed.

Aviation Admin., 231 F.3d 882 (D.C. Cir. 2000). See also

Iceland S.S. Co., Ltd.-Eimskip v. United States Dept. of the

Army, 201 F.3d 451, 461 (D.C. Cir. 2000). Thus, courts will

not make contracts for agencies, for the ultimate grant of a

contract must be left to the discretion of the agency, ‘‘unless

it is clear that, but for the illegal behavior of the agency, the

contract would have been awarded to the party asking the

court to order the award.’’ Delta Data, 744 F.2d at 204.
8

Consequently, the disappointed bidder seeking to overturn

the agency’s decision must show either that the agency’s

decision lacked a rational basis or that the ‘‘procurement

procedure involved a clear and prejudicial violation of applicable statutes or regulations.’’ Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1973).

The court’s review of the district court’s grant of summary

judgment to the Department is de novo, see Tao v. Freeh, 27

F.3d 635, 638 (D.C. Cir. 1994). Our review of LeBoeuf’s

procurement challenge pursuant to 28 U.S.C. § 1491(b)(4),

which incorporates the standards of 5 U.S.C. § 706(2), see

Advanced Data Concepts, Inc. v. United States, 216 F.3d

1054, 1057 (Fed. Cir. 2000), focuses first, on the contracting

officer’s obligations under federal and Departmental regulations to identify and evaluate potential conflicts of interest,

and second, on the question of mootness in light of the

Department’s continuing need for expert legal services for

the Yucca Mountain Project.

A.

Under the Competition in Contracting Act, 41 U.S.C.

§ 253b(a), bids in response to a RFP must be evaluated in

accordance with the RFP and applicable procurement regulations—the Federal Acquisition Regulations (‘‘FAR’’) and the

Department’s Acquisition Regulations (‘‘DEAR’’). As relevant, FAR § 9–504(a)(1), 48 C.F.R. § 9.504(a)(1), requires an

agency to analyze a planned procurement to identify and

determine any possible organizational conflict of interests

(‘‘OCI’’). The contracting officer must seek to ‘‘[a]void, neutralize, or mitigate significant potential conflicts’’ before

awarding a contract. Id. § 9.504(a)(2). A contract shall be

awarded to a successful offeror ‘‘unless a conflict of interest is

determined to exist that cannot be avoided or mitigated.’’ Id.

§ 9.504(e). Further, the FAR provides that when identifying

and evaluating a potential OCI, the agency should first ‘‘seek

the information from within the Government or from other

readily available sources,’’ including ‘‘the files and the knowledge of personnel within the contracting officeTTTT’’ Id.
9

§ 9.506(a). Under FAR § 9.105–1(a), special responsibilities

are placed on the contracting officer ‘‘[b]efore making a

determination of responsibility TTT [to] possess or obtain

information sufficient to be satisfied that a prospective contractor currently meets the applicable standards in 9.104.’’

‘‘When it is necessary TTT the contracting officer shall develop, with the assistance of appropriate specialists, special

standards of responsibility.’’ Id. § 9.104–2(a).

These requirements are reflected in the Department’s procurement regulations on organizational conflicts of interest.

See DEAR § 952.209–8. The regulations provide that an

OCI exists when a contractor ‘‘is unable or potentially unable

to render impartial assistance or advice to the Government,

or the person’s objectivity in performing the contract work is

or might be otherwise impaired.’’ Id. § 952.209–8(a). The

DEAR also require the apparent successful bidder to provide

a detailed statement regarding possible conflicts of interest

arising as a result of ‘‘any past (within the past twelve

months), present, or currently planned financial, contractual,

organizational, or other interests relating to the performance

of the statement of work.’’ DEAR § 952.209–8(c)(1). In

describing the level of detail to be contained in this statement,

the regulations state that as to ‘‘these and any other interests

enough such information must be provided to allow a meaningful evaluation of the potential effect of the interest on the

performance of the statement of work.’’ Id.

The evidence of Winston’s apparent conflict of interests

appears in the language of the TRW Subcontract and the

1999 RFP for the Yucca Mountain contract. The TRW

Subcontract bound Winston to provide services exclusively to

TRW and not to act in a manner contrary to its interests.

Both the TRW Subcontract and the 1999 RFP included the

DEAR’s OCI provision, see id. § 952.209–72, and the 1999

RFP also incorporated an OCI disclosure requirement, see id.

§ 952.209–8. The OCI provision is, by its terms, designed to

ensure that the contractor is not biased as a result of other

contractual, organizational, financial, and other interests relating to work under the contract and to avoid any unfair

competitive advantage. See id. § 952.209–72(a). The OCI
10

provision bars a contractor from participating ‘‘in any capacity in Department contracts, subcontracts, or proposals TTT

which stem directly from the contractor’s performance of

work under this contract for a period of TTT years [to be set

by the contracting officer] after the completion of this contract.’’ Id. § 952.209–72(b)(1)(I). An exception provides that

‘‘[n]othing in this subparagraph shall preclude the contractor

from competing for follow-on contracts for advisory and assistance services.’’ Id.

The Department insists that there was no conflict of interests when it selected Winston because the 1999 RFP contemplated a ‘‘follow-on’’ contract to the TRW Subcontract. The

record suggests two possible grounds for this conclusion.

First, under the 1991 TRW Contract, TRW was the Department’s ‘‘prime’’ contractor on the Yucca Mountain Project,

performing various site characterization studies to determine

if Yucca Mountain was a suitable site for a nuclear waste

repository. After TRW entered into a subcontract with

Winston, there was considerable openness of communication

between TRW, Winston, and the Department. TRW often

provided the Department with copies of documents concerning the regulatory process that were submitted by Winston,

and Winston directly provided the Department with its NRC

licensing work relied upon by the Department. Second,

although not expressly referring to the Yucca Mountain contract as a ‘‘follow-on’’ contract, the Department rejected

LeBoeuf’s protest of the award to Winston because it ‘‘considered the procurement as a replacement for the TRW [S]ubcontract,’’ and the statement of work was substantially similar

to the statement of work under the TRW Subcontract. Similarly, GAO rejected LeBoeuf’s bid protest because, in essence, Winston’s work under its TRW subcontract was ‘‘virtually indistinguishable’’ from the work it was doing under the

challenged contract with the Department. On appeal, the

Department thus maintains that ‘‘Winston was bidding to

perform essentially the same work that it performed for [the

Department] while a subcontractor for TRWTTTT’’ Appellee’s

Brief at 46.
11

The Department’s position misses the mark, however. The

Department knew or should have known that awarding the

Yucca Mountain contract to Winston created an apparent

conflict of interests for Winston that required further scrutiny. Whether, as LeBoeuf contends, the Department’s position that Winston did not have an apparent conflict of interests is implausible depends on the resolution of factual issues

that are unclear from the record. The first issue relates to

whether, as LeBoeuf asserts, TRW’s interests were ‘‘virtually

certain to be adverse to [the Department’s],’’ Appellant’s

Brief at 10, such that Winston could not loyally serve the

Department’s interests without adversely affecting TRW’s

interests. The second issue concerns whether in awarding

the Yucca Mountain Contract to Winston and in structuring

Winston’s scope of work to avoid a conflict of interests, the

Department jeopardized the licensing process for the Yucca

Mountain Project. This risk emanated from the fact that the

NRC could disqualify the Department’s expert law firm for

having a conflict of interests that precluded it from providing

the requisite quality assurance review to assure that the

license application was technically and legally correct.

LeBoeuf contends that, under the Yucca Mountain contract, Winston would be forced to review its previous work for

TRW relating to the Yucca Mountain Project licensing application, which would in turn place the validity of the licensing

process in issue. The Department denies this is so, maintaining that the statement of work for Winston’s contract with

the Department made no mention of such review. The

Revised Management Plan designated the OGC, which lacked

NRC expertise, as the entity that would provide ‘‘concurrence

review’’ before the application was filed with the NRC, not

Winston, the expert law firm. On this basis, GAO rejected

LeBoeuf’s conflicts argument, reasoning that the Department

would ultimately be responsible for the review of the license

application, and that the RFP did not contemplate that the

contractor, Winston, would conduct the review functions.

This was, in GAO’s opinion, a workable solution because the

license application, on which Winston would work, would not

be the original source of any technical conclusions subject to
12

NRC quality assurance review. GAO did not reach LeBoeuf’s arguments alleging violation of the professional canons of ethics and rules of professional responsibility, for lack

of jurisdiction.

Although GAO’s interpretation of contract matters is an

expert opinion to be ‘‘prudently consider[ed]’’ by the court,

Delta Systems, 744 F.2d at 201, ‘‘the court has no obligation

to defer to it.’’ Id. On review of the grant of summary

judgment, we conclude that there is reason not to do so.

LeBoeuf submitted an affidavit in the district court of Howard K. Shapar, who had served as the NRC’s Executive Legal

Director from 1976–1982, and before that as Assistant General Counsel for Licensing and Regulation. Mr. Shaper identified a problem created by the Department’s effort to eliminate a conflict for Winston. Mr. Shapar stated that ‘‘the

artificial and curious limitations on Winston’s scope of work

TTT [will] have a clearly adverse effect on the successful and

timely licensing of the project.’’ Specifically, he found that

the Department’s position that the license application for

Yucca Mountain Project ‘‘will not itself be subject to the

[quality assurance (‘‘QA’’)] process,’’ and that the Department

‘‘does not plan to have a QA review of the License Application,’’ was ‘‘truly astonishing and constitutes a grave mistake

that may result in the Yucca Mountain project being unlicensable.’’ Based on his experience, ‘‘the license application itself

TTT routinely has received the very highest level of quality

assurance review. To abandon this requirement is a prescription for failure, and would by any measure be sharply

contrary to NRC practice and sound public policy.’’ In his

view, the Department’s statement that Winston would not be

part of the final Department concurrence review, part of any

quality assurance review, or part of the team drafting the

license application is contrary to the ‘‘Scope of Work’’ set

forth in Section C.2 of the 1999 RFP, which reflected the

necessary scope of work, consistent with NRC practice, in

which the licensing attorneys are ‘‘intimately involved in

review of the application prior to filing it.’’

The Department nonetheless maintains that Winston was

properly granted the 1999 contract because the technical
13

advisory committee and the contracting officer documented

that Winston’s work under the TRW Subcontract would not

create a conflict of interests. Although the HCA’s Protest

Decision of July 30, 1999 makes clear the Department’s

concern about potential conflicts, the reviews by the committee and the contracting officer were based on the information

provided by Winston and do not discuss whether TRW’s

interests would or could diverge from those of the Department, much less a way to mitigate Winston’s apparent conflict

of interests, as required by FAR § 9.504(a)(2). The Department was aware of the terms of the TRW Subcontract and

TRW was, as LeBoeuf points out, a ‘‘readily available source’’

of information about its contractual relationship with Winston.

LeBoeuf maintains that if the contracting officer had fulfilled

his duties under DEAR, he would have discovered a cover

letter from TRW to potential bidders on the 1992 RFP,

stating that the winning bidder ‘‘was to work ‘exclusively’ for

TRW TTT and do nothing that would potentially or actually

conflict with TRW’s interests.’’ Appellant’s Brief at 14 (quoting the 1992 cover letter that TRW sent to potential bidders).

The Department responds that the 1992 letter was not part of

the TRW Subcontract or the administrative record. It maintains, however, that even if the letter could be read into the

TRW Subcontract, there was still no basis to disqualify

Winston for a conflict of interests, relying mainly on the

Department’s determination that Winston did not have an

OCI and its position, with which the district court agreed,

that the contract for legal services referenced in the 1992

letter was not the procurement at issue.

But given the evidence of Winston’s apparent conflict of

interests arising from the terms of the TRW Subcontract and

the 1999 RFP, the Department’s decision to follow the standard OCI format by accepting Winston’s no-conflict statement at face value is inconsistent with federal and Department OCI requirements. The terms of Winston’s obligations

under the TRW Subcontract are relevant under the OCI

requirements of the 1999 RFP. Moreover, Winston was a

large business concern, yet its no-conflicts statement did not

disclose other relevant interests, such as its representation of
14

the Nuclear Energy Institute identified in the Inspector

General’s November 2001 report. LeBoeuf presented evidence that Winston’s apparent conflict of interests could not

be satisfactorily mitigated without jeopardizing the success of

the Yucca Mountain Project NRC licensing application.

While the Department may be able to demonstrate through

supplementation of the administrative record or other means

that it appropriately addressed Winston’s apparent conflict of

interests and reached a reasonable decision in awarding the

Yucca Mountain contract to Winston and in revising the

Management Plan for development of the application to limit

Winston’s work, the adequacy of the OCI evaluation remains

to be demonstrated. A failure to conduct an adequate evaluation appears harmless to neither the Department’s nor LeBoeuf’s interests. See Delta Systems, 774 F.2d at 203.

Accordingly, because LeBoeuf raised a material issue of

disputed fact regarding the adequacy of the Department’s

regulatory compliance, summary judgment to the Department

was inappropriate, see Liberatore v. Melville Corp., 168 F.3d

1326 (D.C. Cir. 1999); Barrer v. Women’s Nat’l Bank, 761

F.2d 752 (D.C. Cir. 1985); Fed. R. Civ. P. 56(c), and we

vacate the judgment and remand the case to the district court

to determine the adequacy of the Department’s compliance

with FAR and DEAR regulations.

On remand the district court also shall address LeBoeuf’s

contention that awarding the Yucca Mountain contract to

Winston violated Nevada’s Code of Professional Responsibility. The district court declined to reach LeBoeuf’s arguments

based on Winston’s alleged violation of the Code of Professional Responsibility on the ground that the ethical rules did

not fall within FAR’s reference to ‘‘applicable laws and regulations,’’ which it interpreted as referring only to federal

regulations. LeBoeuf maintains that the rules were incorporated in the 1999 RFP by the requirement that lawyers

assigned to the Yucca Mountain Project be members in good

standing of at least one State bar. The HCA’s Protest

Decision of July 30, 1999 indicates that the Department also

viewed the rules of professional responsibility to be relevant

to its determination about actual and apparent conflicts of
15

interests under the 1999 RFP. The HCA applied legal ethics

rules, namely, Rule 1.79(c) of the D.C. Rules of Professional

Conduct, to conclude that even if a law firm’s conflict of

interests could be waived, it was not an adequate solution;

the waiver had to come from all affected clients and, thus, the

waiver would not be within the Department’s control. The

HCA advised that Department ‘‘program officials [were] not

willing to risk that any waiver of conflicts TTT was ineffective.’’ HCA Protest Decision, July 30, 1999, at 5. The

Department’s interpretation, through the HCA, that ethical

rules are relevant to the resolution of conflict-of-interests

under the 1999 RFP, cf. Rosen v. NLRB, 735 F.2d 564, 574–

75 (D.C. Cir. 1984), thus distinguishes Leslie Miller v. State of

Arkansas, 352 U.S. 187, 190 (1956) (per curiam), and Don’t

Tear It Down, Inc. v. Penn. Av. Dev. Corp., 642 F.2d 527,

534–35 (D.C. Cir. 1980), on which the district court relied in

concluding that FAR’s reference to ‘‘applicable laws and

regulations’’ did not encompass state rules of professional

responsibility. Cf. Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1507

(D.C. Cir. 1984).

B.

The Department’s continuing need for NRC expert legal

services was confirmed by the Secretary’s April 30, 2003

letter to the Speaker of the U.S. House of Representatives, of

which we take judicial notice as the Department requests.

See Joseph v. U.S. Civil Serv. Comm’n et al., 554 F.2d 1140,

1148 (D.C. Cir. 1977); Bebchick et al. v. Wash. Metro. Area

Transit Comm’n, 485 F.2d 858, 880 (D.C. Cir. 1973). Events

have overtaken LeBoeuf’s litigation to the extent that the

Department terminated the Yucca Mountain contract with

Winston in November 2001 and, according to its April 30,

2003 letter to the Speaker, is seeking to hire an expert law

firm for the Yucca Mountain Project. However, LeBoeuf’s

request for a direct award or other relief is not moot if the

court can effectuate ‘‘some form of meaningful relief’’ were

LeBoeuf to prevail on the merits of its disqualifying conflict

claim. See Church of Scientology of Ca. v. United States, 506

U.S. 9, 12 (1992).

In Delta Systems, 744 F.2d at 204, the court explained that:
16

the main objective of our effort at framing a remedy is to

assure that the government obtains the most advantageous contracts by complying with the procedures which

Congress and applicable regulations have provided. Putting the disappointed bidder in the economic position it

would have occupied but for the error is normally the

best approach to this result. Where that is impracticable, however, or can only be achieved at a cost to the

government that will greatly exceed the benefits derived

from requiring observance of the proper procedures in

the particular case, we must seek a more reasonable

alternative.

Delta Systems, 744 F.2d at 206–07. The 1999 RFP contemplated a ten-year performance period, and the Department’s

contract with Winston was terminated after only two years.

If the district court on remand finds that the expert legal

services being sought by the Department are substantially

similar to those described in the 1999 RFP, then the court

must determine whether a direct award would be appropriate.

Cf. Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272, 1281–82

(10th Cir. 1991). The Department’s claim that a direct award

to LeBoeuf would be ‘‘unwieldly and peculiar,’’ Appellee’s Br.

at 27, may be explored on remand. Although considerable

time has passed, alternative relief may be appropriate, such

as that suggested in Delta Systems, 744 F.2d at 198, namely,

affording LeBoeuf the right to require the Department to

make a nunc pro tunc reselection of the contractor under any

new RFP. Or, if the district court finds that LeBoeuf has

preserved its bid-preparation claim, an issue the district court

left open, LeBoeuf may, if it desires, recover its bidpreparation costs, provided that the amount is within the

jurisdictional limit. See id.; 28 U.S.C. § 1346 (1982). See

generally, PRC Inc. v. Widnall, 64 F.3d 644 (Fed. Cir. 1995).

Delta Systems, 744 F.2d at 204 (citations omitted); see also

Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864

(D.C. Cir. 1970).

Accordingly, we vacate the judgment to the Department

and remand the case to the district court to determine the

adequacy of the Department’s evaluation of Winston’s appar-
17

ent conflict of interest, and, if LeBoeuf prevails, the nature of

appropriate relief to LeBoeuf in light of the Department’s

need for expert legal services on the Yucca Mountain Project.