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Appeal from a COFC order refusing to enjoin an agency’s decision to override a CICA stay is dismissed. The Federal Circuit held that the GAO protest that triggered the stay was denied, so the protest was now moot. The protester argued that the dispute was not moot because it was subject to the “capable of repetition, yet evading review” exception. But the court found it unlikely that the protester, a joint venture formed for one procurement, would be subject to a stay override again.

The Department of Homeland Security awarded a constract to provide dormitory maintenance at a federal law enforcement training center to B&O Joint Venture. A disappointed bidder, Safeguard Base Operations, protested the award with GAO. The protest triggered the automatic stay of performance under the Competition in Contracting Act. DHS, however, determined that urgent and compelling circumstances justified an override of the CICA stay.

Safeguard then filed suit in the Court of Federal Claims seeking a preliminary injunction to stop DHS from overriding the stay. The COFC denied the request, finding that none of the injunctive relief factors weighed in favor Safeguard. Safeguard then appealed the denial of the injunction to the Federal Circuit. While the appeal was pending, GAO denied Safeguard’s protest.

The government and B&O argued that the appeal was now moot because GAO had denied the protest. Indeed, the decision denying the protest would have terminated the stay anyway. But Safeguard argued that the appeal was not moot because a declaration that the override was contrary to law would bolster its argument in a COFC protest of the award to B&O.

The Federal Circuit, however, rejected the contention that an appeal could not be moot because of the possibility that it may influence another case. The Federal Circuit does not decide cases to advise what the law would be in a hypothetical state of facts.

Safeguard also argued that its case was not moot because it qualified for the “capable of repetition, yet evading review” exception to mootness. Specifically, Safeguard argued that as a government contractor, it may be subject to a future CICA stay override and that the court should address the legal standards governing an override.

The Federal Circuit was not persuaded by this argument either. The “capable of repetition, yet evading review” exception only applies where (1) the challenged action is too short in duration to be fully litigated prior to cessation, and (2) there is a reasonable expectation that the complaining party will be subject to the same action again. Here, the court found that the chances the Safeguard would be subject to another override were slim. Safeguard was a joint venture formed for the purposed of winning the DHS contract. To prove the “capable of repetition” exception, Safeguard would have to lose another bid, file a GAO protest, and suffer another CICA stay override. What’s more Safeguard would have to show that the override lacked a rational basis.

Safeguard is represented by Alexander Brewer Ginsberg, Kevin Reza Massoudi, Aaron Ralph, and Alex Daniel Tomaszczuk of Pillsbury Winthrop Shaw Pittman LLP. B&O Joint Venture is represented by Brian Iverson, Richard William Arnholt, Todd Overman, and Sylvia Yi of Bass, Berry & Sims. The government is represented by P. Davis Oliver, Joseph H. Hunt, Robert Edward Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice.