Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^** 

Plaintiff-Appellant J.E. McAmis, Inc. ("McAmis") filed a complaint seeking a preliminary and permanent injunction prohibiting Defendant-Appellee Colonel Wayne J. Scholl of the Army Corps of Engineers (the "Corps") from awarding a construction contract to SN-M, a joint venture. The Corps had invited bids for repairs and rehabilitation work on a 15-mile stretch of the levee system along the Sacramento river. The repairs were necessary to remedy damage done by the severe floods of February, 1986. The contract was 100 percent set-aside for small businesses.

McAmis was the second lowest bidder. SN-M was the lowest bidder. McAmis filed a timely bid protest on the grounds that SN-M was not a qualified small business. While its protest was pending, McAmis filed this action seeking to enjoin award of the contract "unless and until the Small Business Administration [ ("SBA") ] conducts a size determination of SN-M and finds it to be a bona fide small business within the meaning of 15 U.S.C. § 632 and 13 C.F.R. Part 121."

McAmis challenges the district court's denial of its application for a Temporary Restraining Order ("TRO") prohibiting the Corps from awarding the contract to SN-M, and the subsequent dismissal of its suit. McAmis' appellate brief describes this as a lawsuit challenging "the announced award of a public works contract by the [Corps] to SN-M." But several days after the district court denied the TRO, the SBA found that SN-M was not a qualified small business and the Corps awarded the construction project to McAmis.

The district court denied appellee's motion to dismiss on mootness grounds, but granted dismissal on the basis that the complaint failed to state a claim. Appellant argues that the district court misconstrued its claim as based on a private cause of action under the Small Business Act. Such a claim is arguably foreclosed by our decision in Savini Const. Co. v. Crooks Bros. Const. Co., 540 F.2d 1355 (9th Cir. 1974). Appellant states that the district court improperly denied it leave to amend to clarify that the basis of its action was 5 U.S.C. § 706(2) (A) of the Administrative Procedure Act. We do not reach the merits of this issue because this case is not justiciable.

The principal defect appellant identifies in the relevant bid protest procedures is that the Corps has the authority to award a bid regardless of a pending bid protest. Following a bid protest, the Corps refers the protest to the SBA for its determination on the small business size status of the winning bidder. The SBA has 10 days to rule upon the protest, but the Corps can award the contract immediately if it concludes that the award must be made to protect the public interest. 48 C.F.R. Sec. 19.302(h) (1) (1987). The Corps can also award the contract during the pendency of an appeal of the SBA's ruling if the Corps concludes that further delay would be disadvantageous to the government. 48 C.F.R. Sec. 19.302(h) (2) (1987). Indeed the Savini court reasoned that the Corp's authority to award the contract despite the pendency of a bid protest indicated that "Congress, by enacting the set-aside provisions, did not intend to benefit small business at any cost." Savini, 540 F.2d at 1358.

This court does not have subject matter jurisdiction over this case because our "constitutional authority extends only to actual cases or controversies." Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). Appellant would essentially reason that it had standing to bring this suit in order to prevent the Corps from arbitrarily awarding the contract to SN-M without awaiting the SBA's size determination. That appellant did not suffer this "threatened" injury only highlights the hypothetical nature of the threatened injury. A case is not justiciable in federal court unless the alleged threatened injury is both real and immediate; not conjectural or hypothetical. E.g., Portland Police Ass'n v. City of Portland, 658 F.2d 1272, 1273 (9th Cir. 1981). The possibility that the Corps would have acted arbitrarily is too remote and conjectural to present a justiciable controversy.

AFFIRMED.