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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 Depart-
ment 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 judg-
ment 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 consid-
ered the apparent conflict of interest as required by federal
and Departmental regulations, and (2) whether the Depart-
ment’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 oper-
ating 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 Depart-
ment must issue guidelines for the recommendation of sites
for a permanent repository, nominate sites for site character-
ization 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 manage-
ment and operations contractor for the Yucca Mountain Pro-
ject. 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 Man-
agement (‘‘OCRWM’’) in developing an integrated radioactive
waste management system for the storage and ultimate dis-
posal 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 (‘‘Win-
ston’’). 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]om-
mitment 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 activi-
ties’’ 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 applica-
ble 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 De-
partment recognized the importance of avoiding the appear-
ance 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 recog-
nized that it was statutorily obligated to serve a broader
public interest than an interested party. The Head of Con-
tracting 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 responsibili-
ties 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 diver-
gence 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 Deci-
sion of July 30, 1999 at 5.
Only two law firms, LeBoeuf and Winston, submitted bids.
Pursuant to the conflicts disclosure requirement of the De-
partment’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 informa-
tion 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 Win-
ston had an organizational conflict of interest (‘‘OCI’’). The
Department denied the appeal, stating that the Yucca Moun-
tain 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. Subsequent-
ly, the General Accounting Office (‘‘GAO’’), by decision of
February 3, 2000, denied LeBoeuf’s bid protest. GAO con-
cluded 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 re-
view’’ before the application was filed with the NRC. ‘‘Con-
currence 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 disqualify-
ing OCI because the Department was ultimately responsible
for review of the licensing application and the Yucca Moun-
tain 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 provi-
sion of the contract by failing to disclose its lobbying and non-
lobbying 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 sum-
mary 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 exam-
ined 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 award-
ed the Yucca Mountain contract under federal and Depart-
ment 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 [Depart-
ment’s interests].’’ Appellant’s Brief at 10. On appeal, Le-
Boeuf 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 disregard-
ed 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. Web-
ster, 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 Nu-
clear 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 applica-
ble statutes or regulations.’’ Kentron Hawaii, Ltd. v. War-
ner, 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 regula-
tions 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 regula-
tions—the Federal Acquisition Regulations (‘‘FAR’’) and the
Department’s Acquisition Regulations (‘‘DEAR’’). As rele-
vant, 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, neu-
tralize, 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 knowl-
edge 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 con-
tractor currently meets the applicable standards in 9.104.’’
‘‘When it is necessary TTT the contracting officer shall devel-
op, with the assistance of appropriate specialists, special
standards of responsibility.’’ Id. § 9.104–2(a).
These requirements are reflected in the Department’s pro-
curement 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 mean-
ingful 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 re-
lating 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 capaci-
ty 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 con-
tract.’’ 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 assis-
tance services.’’ Id.
The Department insists that there was no conflict of inter-
ests when it selected Winston because the 1999 RFP contem-
plated 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 Depart-
ment’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 concern-
ing 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 con-
tract as a ‘‘follow-on’’ contract, the Department rejected
LeBoeuf’s protest of the award to Winston because it ‘‘consid-
ered the procurement as a replacement for the TRW [S]ub-
contract,’’ and the statement of work was substantially similar
to the statement of work under the TRW Subcontract. Simi-
larly, GAO rejected LeBoeuf’s bid protest because, in es-
sence, Winston’s work under its TRW subcontract was ‘‘virtu-
ally 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 scruti-
ny. Whether, as LeBoeuf contends, the Department’s posi-
tion that Winston did not have an apparent conflict of inter-
ests 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 con-
tract, Winston would be forced to review its previous work for
TRW relating to the Yucca Mountain Project licensing appli-
cation, which would in turn place the validity of the licensing
process in issue. The Department denies this is so, maintain-
ing 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 Le-
Boeuf’s arguments alleging violation of the professional can-
ons 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 How-
ard K. Shapar, who had served as the NRC’s Executive Legal
Director from 1976–1982, and before that as Assistant Gener-
al Counsel for Licensing and Regulation. Mr. Shaper identi-
fied a problem created by the Department’s effort to elimi-
nate 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 Applica-
tion,’’ was ‘‘truly astonishing and constitutes a grave mistake
that may result in the Yucca Mountain project being unlicens-
able.’’ 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 pre-
scription 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 commit-
tee 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 Depart-
ment, much less a way to mitigate Winston’s apparent conflict
of interests, as required by FAR § 9.504(a)(2). The Depart-
ment 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 (quot-
ing 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 main-
tains, 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 stan-
dard OCI format by accepting Winston’s no-conflict state-
ment at face value is inconsistent with federal and Depart-
ment 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 evi-
dence 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 evalua-
tion appears harmless to neither the Department’s nor Le-
Boeuf’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 Responsibili-
ty. The district court declined to reach LeBoeuf’s arguments
based on Winston’s alleged violation of the Code of Profes-
sional Responsibility on the ground that the ethical rules did
not fall within FAR’s reference to ‘‘applicable laws and regu-
lations,’’ which it interpreted as referring only to federal
regulations. LeBoeuf maintains that the rules were incorpo-
rated 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 ineffec-
tive.’’ 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 advanta-
geous contracts by complying with the procedures which
Congress and applicable regulations have provided. Put-
ting 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 impractica-
ble, 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 contem-
plated 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 bid-
preparation 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.