715 F.2d 1476 (Fed. Cir. 1983), 83-1003, F. Alderete General Contractors, Inc. v. United States

Docket Nº:83-1003.
Citation:715 F.2d 1476
Case Date:August 23, 1983
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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715 F.2d 1476 (Fed. Cir. 1983)




No. 83-1003.

United States Court of Appeals, Federal Circuit

August 23, 1983

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C. Stanley Dees, Washington, D.C., argued for appellant. With him on the brief were David A. Churchill and Jacob B. Pankowski, Washington, D.C., Thomas Spieczny and Raymond C. Caballero, El Paso, Tex., were also on the brief.

Mark A. Cymrot, Washington, D.C., argued for appellee. With him on the brief were J. Paul McGrath, Asst. Atty. Gen., and David M. Cohen, Washington, D.C., Director.

Before MARKEY, Chief Judge, BENNETT, Circuit Judge, and COWEN, Senior Circuit Judge.

COWEN, Senior Circuit Judge.

The appellant, F. Alderete General Contractors, Inc. (Alderete or contractor), appeals from a decision of the United States Claims Court 1 (Claims Court) which held that it lacked the power under 28 U.S.C. § 1491(a)(3) to grant injunctive and other equitable relief under the circumstances.

The contractor first filed his suit for equitable relief in a district court, which transferred the case to the Claims Court. The contract was awarded after the transfer but before the Claims Court could rule on the merits of the application. Holding that it could not exercise the equitable powers granted by the statute beyond the pre-award stage of the procurement process, the Claims Court dismissed the contractor's complaint. We reverse and remand for further proceedings.


On January 21, 1983, Alderete filed a "Motion for Contempt, Application for Enforcement of Judgment, and for Further Relief" in the United States District Court for the Western District of Texas (District Court) on December 15, 1981. Prior to the filing of the motion, that court had issued a permanent injunction which required that the U.S. Army Corps of Engineers (Corps) offer the Keystone Project in El Paso, Texas, to the Small Business Administration (SBA) under the program established pursuant to Section 8(a) of the Small Business Act, 15 U.S.C. § 637.

Following the issuance of the injunction, the Corps offered the Keystone Project to the SBA, and in June 1982, Alderete was selected for this procurement. The ensuing negotiations between Alderete and the Corps were not successfully concluded and the Corps, after advising SBA, then removed the project from the Section 8(a) program. On January 14, 1983, an unrestricted invitation for bids was issued. Alderete responded with the motion it filed on January 21, 1983, referred to above.

On February 19, 1983, the District Court entered an order holding the Corps in civil contempt for its decision to let the Keystone Project procurement on an unrestricted basis. However, the court also granted the Corps permission to seek relief from the injunction previously entered and to proceed

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with the bid opening then scheduled, provided that no award would be issued until the court ruled upon an application for relief from the injunction.

By order filed March 9, 1983, the District Court reconsidered its order of February 19, 1983, and ruled that the Corps' decision to relet the contract on an unrestricted basis did not constitute contempt of the injunction which was issued December 15, 1981. The court also ruled that "the Corps may issue an award pursuant to said bid opening." However, the court also found that the events which Alderete had complained of in its motion of January 21, 1983, constituted a "new cause of action and as to that cause of action jurisdiction lies in the United States Claims Court pursuant to 28 U.S.C. 1491." Accordingly, the District Court transferred the case to the Claims Court by order of March 9, 1983.

On the following day, March 10, 1983, the Corps awarded the contract to Burns Construction Company, Inc.

On March 25, 1983, pursuant to the transfer order, Alderete filed in the Claims Court its Complaint And Application For Temporary Restraining Order Preliminary Injunction And Permanent Injunction, seeking equitable relief enjoining construction work, placing the Keystone Project back into the SBA Section 8(a) program and providing for either an award to Alderete or an order that negotiations to...

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