UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ADVN MGMT TECHNOL

v.

FAA


99-1314a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: In 1998 the Federal Aviation  Administration
("FAA") adopted a subordinate office's find- ings that petitioner
Advanced Management Technology, Inc.  ("AMTI") had made
misrepresentations in a bid proceeding in  which AMTI eventually won a
multi-million dollar contract.  Because of the misrepresentations, the
bidding was reopened.  But because the FAA believed AMTI had not
intended to  defraud the government, it allowed AMTI to compete in the
 new round--in which AMTI again won the contract. AMTI  has no desire
to relinquish the new contract in favor of the  old one, but still
seeks a reversal of the earlier findings or a  new hearing with
different procedures. We dismiss the  petition for want of standing.


* * *


In August 1996 the FAA began procurement of a technical  assistance
contract for work with the Global Positioning  System. A group of
contractors, bound by a May 1996  "teaming agreement" and including
AMTI, responded. Fel- low teammates were Innovative Solutions
International  ("ISI") and Overlook Systems Technologies, Inc. ("Over-
look"). Overlook was "team leader." Over the next year and  a half,
AMTI's teammates fluctuated in number and identity.  In January 1998
the FAA issued its Request for Offers.  AMTI, now the team leader of a
reconstituted group, submit- ted a proposal under which it would serve
as the prime  contractor and Overlook would be one of three


AMTI represented in its offer that it had "entered into  teaming
Agreements with Overlook, ISI, and Zeta that estab- lish goals for
each subcontractor's participation in work ef- forts on [the
contract]." The agreement referred to was the  May 1996 agreement, not
a new one. AMTI further offered a  chart with proposed work allocation
percentages among the 


subcontractors, including Overlook, and identified key person- nel from
Overlook whose services would be used. The FAA  found AMTI's proposal
the best value. It nonetheless negoti- ated with AMTI further in a
quest for better terms. On May  8, 1998 AMTI submitted its "best and
final offer," known in  the trade as a BAFO. This offer assured FAA
that there  were no material changes in personnel availability (i.e.,
it  implicitly assured the FAA that key Overlook personnel  would be
used), and also warranted that it had successfully  negotiated revised
rates with subcontractors.


AMTI failed to mention that on April 16 Overlook had  provided AMTI its
best and final offer with respect to  Overlook's labor rates--an offer
quite inconsistent with  AMTI's May 8 offer to the FAA. Whereas
Overlook had  offered to participate at a specified compensation rate
on  condition that it receive "approximately 33 percent" of the 
contract, AMTI's offer included Overlook's staffing at that 
compensation rate but at less than half the usage rate on  which
Overlook had conditioned its agreement. AMTI's  counsel would later
attempt to justify this fact to the FAA's  Office of Dispute
Resolution for Acquisition ("Dispute Resolu- tion Office") as


[B]ecause AMTI is a small, minority, woman-owned busi- ness, it quite
simply could not afford to just cover the  additional expense of the
Overlook personnel.... Over- look refused to lower the rates for its
staff and thus,  AMTI was forced to make a business decision: AMTI 
could bid all [SEALED] of Overlook's people at the  [SEALED]
multiplier and lose the contract, or AMTI  could cut the number of
Overlook's positions, and bid  them at the higher rates. AMTI could
not discuss this  with Overlook, however, because no one at Overlook
was  available to make the decision.


On June 2, 1998 the FAA awarded AMTI the contract.  Negotiations with
Overlook continued, ultimately breaking  down on June 29 with
Overlook's withdrawal from the project.  Meanwhile, competing bidders
Camber Corporation and In- formation Systems & Networks Corporation
filed bid pro- tests, alleging among other things "bait and


AMTI had misrepresented the availability of key personnel.  Apparently
the bid protests were fueled in no small part with  inside information
from Overlook. FAA referred the protests  to its Dispute Resolution
Office.


The FAA eventually adopted the findings of that office,  concluding
that "the use AMTI made of Overlook's April 16,  1998 rates and its
highly qualified key personnel was com- pletely unauthorized. AMTI
proceeded to use those rates  and personnel with no assurance that,
once Overlook discov- ered what AMTI had done, Overlook would still
make those  critical individuals available[.]" Protests of Camber
Corpora- tion and Information Systems & Networks Corporation Un- der
Solicitation No. DTFA01-[96]-R-11087, Docket Nos.  98-ODRA-00079 et
al., at 36 (Sept. 3, 1998). The FAA then  ordered the bid process
reopened. AMTI was allowed to  continue performing under the original
contract in the inter- im. It was also allowed to recompete for the
contract, as the  FAA found no "actual intent to defraud the
Government."  Id. at 77. The FAA denied AMTI's motion for reconsidera-
tion, and AMTI petitioned for review here.


In the meantime, AMTI re-bid and won the contract. In  fact, the second
award was more lucrative than the first.  AMTI nonetheless argues that
it was the victim of findings  unsupported by substantial evidence and
contrary to law, and  that it was subjected to a dispute resolution
procedure (the  hearing before the Dispute Resolution Office) which
violated  statutory authority1 and constitutional due process. But 
AMTI does not ask us to restore the first contract. Rather,  it seeks
mere reversal of the FAA's findings, or in the  alternative a remand
to the FAA for a hearing that satisfies  statutory and constitutional
standards.


* * *


The FAA challenges AMTI's standing, arguing that be- cause AMTI is
currently performing under a more lucrative 




__________

n 1 The authority at issue is s 348 of the Department of Trans-
portation and Related Agencies Appropriations Act, 1996, Pub. L.  No.
104-50, 109 Stat. 460 (1995).


contract, it can't really be injured. The claim may sound like  one of
mootness--a justiciable controversy existed but no  longer
remains--but the timing makes AMTI's problem one  of standing. AMTI
was awarded the second contract on June  24, 1999, before either the
FAA's denial of reconsideration or  AMTI's filing the present petition
for review (July 30, 1999).  Standing is assessed "at the time the
action commences,"  Friends of the Earth, Inc. v. Laidlaw
Environmental Ser- vices (TOC), Inc., ___ U.S. ___, 120 S. Ct. 693,
709-10 (2000),  i.e., in this case, at the time AMTI sought relief
from an  Article III court, when AMTI held the more lucrative second 


Contrary to AMTI's assumptions, Article III courts do not  ordinarily
have jurisdiction to issue, as the Seventh Circuit  has put it, "Writs
of Erasure" to administrative agencies or  district courts to cleanse
their opinions of material distressing  to winners. United States v.
Accra Pac, Inc., 173 F.3d 630,  632 (7th Cir. 1999). AMTI "must show
(1) it has suffered an  'injury in fact' that is (a) concrete and
particularized and (b)  actual or imminent, not conjectural or
hypothetical; (2) the  injury is fairly traceable to the challenged
action of the  defendant; and (3) it is likely, as opposed to merely
specula- tive, that the injury will be redressed by a favorable deci-
sion." Friends of the Earth, 120 S. Ct. at 704. AMTI claims 
reputational injury, monetary injury from the costs of litiga- tion
and rebidding, and injury to its right to a legally valid  procurement


1. Reputational Injury


AMTI says the FAA branded it a "fraud" and a "liar."  With this
(mis)characterization of the FAA's findings, AMTI  seeks to bring
itself within the reach of reputational injury  cases such as Meese v.
Keene, 481 U.S. 465 (1987). See also  Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S.  123 (1951); Southern Mutual Help
Ass'n, Inc. v. Califano,  574 F.2d 518 (D.C. Cir. 1977) ("SMHA"); Old
Dominion  Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953 


Standing cannot be "inferred argumentatively" but rather  "must
affirmatively appear in the record." Spencer v. Kem- na, 523 U.S. 1,
10-11 (1998) (internal quotations omitted). All  that affirmatively
appears here is AMTI's vast exaggeration  of the FAA's findings; we
have no allegations, much less  evidence, as to their present or
future consequences. The  FAA specifically declined to find any intent
to defraud; a  "bait and switch" finding can be made solely on
negligent  misrepresentations. AMTI notes that the October 5, 1998 
issue of Federal Contracts Reports, which relayed the FAA's  decision
to the field, quoted a remark of counsel for the  Camber Corporation
that the order "vindicates the basic  principle that you can't lie to
the government to get a  contract." But the government as adjudicator
can hardly be  held responsible for the gloatings of a triumphant
advocate.  AMTI offered no evidence that the FAA's findings cast any 
shadow over its business activities, and the "all is forgiven" 
message implicit in FAA's re-award of the contract suggests  the


With this sparse record, we need not probe the subtle  boundaries of
precedent. In Meese v. Keene, for instance, the  Court found on the
basis of survey data and expert affidavits  that if plaintiff were to
exhibit certain imported films under  the government's mandatory label
of "political propaganda,"  "his personal, political, and professional
reputation would  suffer and his ability to obtain re-election and to
practice his  profession would be impaired." 481 U.S. at 473-74
(internal  quotation marks omitted). In SMHA a grantor agency had 
prematurely terminated plaintiff grantee's multi-year grant, 
accompanying the termination with a scathing audit. Though  the
termination itself--which we found required a hearing  under the
agency's regulations--was surely enough, we  stressed the severity of
the agency's condemnation of plaintiff  and the overwhelming
probability that future applications  would receive an "inhospitable
reception." 574 F.2d at 524.  Old Dominion Dairy Products similarly
involved devastating  findings with present and future preclusion from
Government  work. 631 F.2d at 955, 964. Cf. Kartseva v. Department of 
State, 37 F.3d 1524, 1528 (D.C. Cir. 1994) (reviewing due 


process merits issue when government may have "automati- cally"
precluded plaintiff from future jobs).


AMTI has not begun to show the likelihood of injury from  the FAA's
characterizations of its conduct. Charitably, the  injury is
"speculative"--the ultimate label for injuries too  implausible to
support standing. See Alamo v. Clay, 137  F.3d 1366, 1370 (D.C. Cir.
1998); J. Roderick MacArthur  Foundation v. FBI, 102 F.3d 600, 606
(D.C. Cir. 1996). And  reputational injury alone would not get AMTI
very far in  seeking a new hearing subject to constitutional due
process.  See Siegert v. Gilley, 500 U.S. 226, 233 (1991)
("Defamation,  by itself, is a tort actionable under the laws of most
States,  but not a constitutional deprivation."). As we shall see, 


2. Monetary Injury


AMTI asserts several different monetary injuries: litiga- tion costs in
the Dispute Resolution Office proceeding, costs  of rebidding, and
litigation costs in defending a qui tam  lawsuit in the eastern
district of Virginia allegedly spawned  by the proceeding at FAA. AMTI
has offered no detail for  any of these costs, which may well be more
than offset by the  award of the more lucrative second contract. But
even if  AMTI has concrete and particularized monetary injuries, and 
if they are fairly traceable to the FAA and its Dispute  Resolution
Office,2 AMTI has only one theory of redressabili- ty: the Equal
Access to Justice Act ("EAJA"), 28 U.S.C.  s 2412. According to AMTI,
if we reverse the FAA, thereby  making AMTI a "prevailing party" under
EAJA, AMTI can  recover some of its litigation expenses.




__________

n 2 AMTI states that the "sole genesis" of the qui tam action was  the
Dispute Resolution Office's "finding of a fraudulent 'bait and 
switch.' " If so, this seems to mark the qui tam action as frivolous 
on its face since the False Claims Act bars actions solely "based 
upon" public disclosures in administrative hearings. See 31 U.S.C.  s
3730(e)(4)(A); United States ex rel. Findley v. FPC-Boron Em- ployees'
Club, 105 F.3d 675 (D.C. Cir. 1997); United States ex rel.  Siller v.
Becton Dickinson & Co., 21 F.3d 1339, 1347-48 (4th Cir.  1994).


Under AMTI's theory anyone meeting EAJA's wealth lim- its would have
constitutional standing (although often not  prudential standing) in
relation to any government decision:  if they prevailed, they might
recover attorneys' fees for  reversing the agency's action. EAJA does
not work this way.  EAJA allows recovery of costs for prevailing
parties in "judi- cial review of agency action," 28 U.S.C. s
2412(d)(1)(A), but  the party must first prevail in a "court having
jurisdiction of  that action," id. In other words, there must be
standing and  otherwise proper subject matter jurisdiction for the
underly- ing action; EAJA is not a highway to federal court for 
anyone wishing to uphold the rule of law. See Democratic  Senatorial
Campaign Committee v. FEC, 139 F.3d 951, 953  (D.C. Cir. 1998); Lane
v. United States, 727 F.2d 18, 20-21  (1st Cir. 1984). As the only
means identified by AMTI for  recovery of costs is a non-starter, this
injury--assuming it  exists at all on a net basis--is not


3. Right to a Legal Procurement Process


AMTI asserts finally that the FAA's creation and use of its  Dispute
Resolution Office deprives AMTI of its "right to a  legally valid
procurement process." National Maritime Un- ion of America, AFL-CIO v.
Commander, Military Sealift  Command, 824 F.2d 1228, 1237 (D.C. Cir.
1987). As a purely  backward-looking claim, this adds nothing to the
prior discus- sion. AMTI has identified no past injury that is within
the  power of the court to redress. Compare Lujan v. Defenders  of
Wildlife, 504 U.S. 555, 573 n.8 (1992) (allowing parties  standing to
enforce a procedural norm "designed to protect  some threatened
concrete interest").


As a forward-looking claim it fares no better. If AMTI had  alleged
that it expected to seek future FAA contracts and  likely would
re-encounter the offending procedure, that claim  might provide it the
necessary concrete interest in removing  the alleged procedural flaw.
In Scheduled Airlines Traffic  Offices, Inc. v. Department of Defense,
87 F.3d 1356, 1358-59  (D.C. Cir. 1996), we found standing for a
winning bidder--but  only because it intended to bid on future similar
contracts and  raised legal claims against substantive rules that it


were biased against its success. Not only does AMTI not  mention future
bidding plans, but the procedures to which it  objects are ones
triggered only by specified bidding disputes.  AMTI does no more to
show a likelihood of being subjected to  these procedures than the
plaintiff in Los Angeles v. Lyons,  461 U.S. 95, 105 (1983), showed a
likelihood of being subjected  to future chokeholds. See also Spencer,
523 U.S. at 15-16  (dismissing as "purely a matter of speculation"
whether the  petitioner would in the future appear as a civil or
criminal  witness and have his parole revocation used against him).


* * *


The petition for review is


Dismissed.