National Mall Tours of Washin v. DOI, et al

Filing

OPINION [1682922] filed (Pages: 19) for the Court by Judge Wilkins. [16-5080]

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2017

Decided July 7, 2017
No. 16-5080

NATIONAL MALL TOURS OF WASHINGTON, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00529)

Kevin R. Garden argued the cause and filed the briefs for
appellant.
Brian J. Field, Assistant U.S. Attorney, argued the cause
for federal appellees. With him on the briefs were R. Craig
Lawrence and Alexander D. Shoaibi, Assistant U.S. Attorneys.
Frank S. Swain argued the cause and filed the brief for
appellee City Sightseeing Washington D.C., Inc.
Before: TATEL and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Page 1 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Appellant National Mall Tours
of Washington, Inc. (“National Mall Tours”) competed with
City Sightseeing Washington D.C., Inc., doing business as
“Big Bus Tours,” for a highly coveted 10-year concession
contract with the Park Service that would allow it to provide
guided tours on the National Mall. Big Bus Tours won the
contract. National Mall Tours sued the U.S. Department of
Interior, Secretary Sally Jewell, the National Park Service, and
Director of Park Service Jonathan Jarvis (collectively, the
“Park Service”) in the District Court under the Administrative
Procedure Act and the National Park Service Concessions
Management Improvement Act of 1998, 54 U.S.C. § 101911 et
seq. (“Concessions Act”). National Mall Tours challenged the
agency’s decision to proceed with the award of the contract to
Big Bus Tours despite the fact that Big Bus Tours underwent a
change of ownership midway through the award process.
National Mall Tours also challenged the agency’s failure to
notify two congressional committees of the proposed
concession contract between the Park Service and Big Bus
Tours, as allegedly required by the Concessions Act. The
parties submitted cross-motions for summary judgment. The
District Court ruled in favor of the Park Service and dismissed
the action. This appeal followed.
I.
We begin by examining the legal framework governing
awards of concession contracts and then turn to what happened
in this case.

Page 2 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

3
A.
The 1998 Concessions Act and accompanying Park
Service regulations govern the competitive process by which
the agency solicits proposals and awards concession contracts
for visitor services on the National Mall. Generally, the Park
Service issues a prospectus, bidders (known as “offerors”)
respond by submitting proposals, and the Park Service then
selects the winning proposal. The Concessions Act provides
certain minimum standards the Park Service should follow
along the way and affords the agency discretion to determine
whether those standards are met.
The Concessions Act instructs the Park Service to select
the offeror with the “best proposal, as determined by the
Secretary through a competitive selection process,” 54 U.S.C.
§ 101913(1), with reference to various criteria including
statutorily enumerated Principal Selection Factors, id.
§§ 101913(1), (5)(A); see 36 C.F.R. § 51.16. For example,
Principal Selection Factor 3 considers the “experience and
related background” of the offeror, and Principal Selection
Factor 4 considers “the financial capability” of the offeror to
carry out its proposal. 54 U.S.C. § 101913(5)(A)(ii)-(iii). The
Park Service must take these and other factors into account
when determining which offeror has the “best” proposal. Id.
§ 101913(5)(A). The Concessions Act also provides certain
grounds for which the Park Service “shall reject,” or not even
“consider[]” proposals, when the Park Service “determine[s]”
that an offeror fails to meet certain standards.
Id.
§ 101913(4)(A)-(B).
Relevant here, Park Service regulations provide that the
agency will reject a proposal when it “determin[es]” the
proposal is not “responsive.” 36 C.F.R. § 51.18. A
“responsive proposal” is one that the Park Service has

Page 3 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

4
“determined” “provide[s] the information required by the
prospectus,” among other things. Id. § 51.3. This does not
mean a proposal lacking any requisite minutiae will necessarily
be rejected.
Rather, the agency approaches missing
information with a view toward its materiality – that is, the
information that it considers to be “required by the Prospectus”
is that which is both “expressly required by the Prospectus
and . . . material, as determined by the Service, to an effective
evaluation of the proposal under the applicable selection
factor.” Prospectus, J.A. 311 (emphasis added). Importantly,
once proposals are submitted, offerors are generally prohibited
from amending or supplementing their proposals. See 36
C.F.R. § 51.15(a). Thus, omissions can be fatal if the Park
Service deems them material.
B.
In October 2014, the Park Service issued a Prospectus
soliciting proposals for a 10-year concession contract on the
National Mall. The Prospectus called for all proposals to be
submitted by December 12, 2014. At the time, Big Bus Tours
served as a temporary concessioner with its contract set to
expire on March 31, 2015.
Three companies supplied proposals for the contract – Big
Bus Tours, City Sights D.C., and National Mall Tours. The
Park Service’s Evaluation Panel reviewed all three proposals,
scored them, and ultimately recommended that the agency
select Big Bus Tours to be the concessioner on the new
contract.
Park Service management approved the
recommendation, agreeing Big Bus Tours had the best
proposal. On March 15, 2015, the agency informed each
bidder of its decision and sent Big Bus Tours a copy of the
proposed contract for its signature.

Page 4 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

5
On March 19, after learning it would lose the bid, National
Mall Tours interjected with an email to a Park Service
manager: “Are you aware that Big Bus was sold in February of
this year? Do you know who you are dealing with at this
point?” The email alluded to the recent acquisition by
Exponent Private Equity Partners III LP of 60% of the
outstanding equity of Big Bus Tours Ltd. (“Big Bus UK”),
which was the United Kingdom-based parent company of Big
Bus Tours’ own parent company (the “Exponent
Transaction”). 1
Four days later, on March 23, the Park Service carried on
with the award process and sent a letter to Big Bus Tours
reiterating the agency’s “intent to award” it the contract. J.A.
1406. On March 26, National Mall Tours interjected again, this
time with a letter from its counsel to the Park Service outlining
Big Bus Tours’ recent change in ownership and insisting that
its proposal was now invalid. The letter did not distinguish
between Big Bus Tours and Big Bus UK, leaving the
impression that Big Bus Tours was directly purchased by
Exponent by variously stating: Big Bus Tours was “acquired
by a new foreign company” and Exponent “took over control
of Big Bus Tours.” J.A. 1412-13. Because offerors are
prohibited from amending their proposals after submission,
National Mall Tours asserted that the Park Service “is legally
precluded from proceeding with any award of the contract” to
Big Bus Tours “given that critical information related to the
evaluation of Big Bus Tours has changed since proposals were
submitted.” J.A. 1413-14. Thus, National Mall Tours
requested that the Park Service “voluntarily rescind” its

1

At all relevant times, Big Bus Tours (D.C.) was 100% owned by
Open Top Sightseeing USA (D.C.), which was in turn 100% owned
by Big Bus UK.

Page 5 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

6
decision to award the contract to Big Bus Tours or else face
National Mall Tours in court. J.A. 1414.
A flurry of emails among Park Service managers ensued,
raising concerns that Big Bus Tours’ proposal might have
depended on funding that no longer exists. They determined it
was necessary to request information from Big Bus Tours
about the Exponent Transaction. On March 27, the Park
Service emailed Big Bus Tours, “request[ing]” that it
“resubmit” its responses to Principal Selection Factors 3 and 4
to reflect “the new ownership information.” J.A. 1455. Those
selection factors concerned the organizational structure and
financial ability of the offeror, respectively. The Park Service
also requested that Big Bus Tours “provide a narrative or a
revised proposal signifying all the references of the previous
ownership replaced by the new ownership.” J.A. 1455.
Big Bus Tours responded the following day with a twopage letter (the “March 28 Letter”), advising the agency of
various things that remained “unchanged” as a result of the
Exponent Transaction, implying it did not need to supplement
or revise its proposal.
It explained that Exponent’s
“investment” in Big Bus Tours’ “London Company . . . in no
way affects the tender submitted with no change in control or
ownership structure of our US operations.” J.A. 1456. Big Bus
Tours also asserted that the “change has no [e]ffect” on its
responses to Principal Selection Factors 3 or 4. J.A. 1456.
With respect to the corporate ownership information required
by Principal Selection Factor 3, Big Bus Tours said that its
“corporate structure . . . remains unchanged,” though it
acknowledged that Big Bus Tours’ grandparent (Big Bus UK)
was now “beneficially owned” by Exponent. J.A. 1456-57. As
for Principal Selection Factor 4, Big Bus Tours explained that
Exponent’s investment would result in no change in its
financial capacity as outlined in the proposal and specifically

Page 6 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

7
there was “no change to Investment, Income and Cash Flow
schedules as originally supplied in the [Principal Selection
Factor 4] Excel Forms.” J.A. 1457.
On March 30, Park Service managers conferred over email
and determined to proceed with the award to Big Bus Tours,
signing the contract that same day. J.A. 1515-16.
National Mall Tours filed a lawsuit in the District Court,
challenging the Park Service’s award decision. Big Bus Tours
joined the proceeding as an Intervenor-Defendant. The parties
filed their respective motions for summary judgment on the
administrative record. The District Court denied National Mall
Tours’ motion for summary judgment and granted summary
judgment to the Park Service. This appeal followed.
National Mall Tours’ chief contention is that the Exponent
Transaction affected Big Bus Tours’ proposal in a material way
such that the Park Service lacked a rational basis for awarding
the contract to Big Bus Tours once it learned about the change
in ownership. It also argues that the Park Service flouted its
statutory obligation to submit the proposed concession contract
to certain congressional committees prior to finalizing the
award.
II.
We review a district court’s grant of summary judgment
de novo. Grossmont Hosp. Corp. v. Burwell, 797 F.3d 1079,
1082 (D.C. Cir. 2015). “[B]ecause we review the district
court’s judgment, not its reasoning, we may affirm on any
ground properly raised.” Jones v. Bernanke, 557 F.3d 670, 674
(D.C. Cir. 2009) (quoting EEOC v. Aramark Corp., 208 F.3d
266, 268 (D.C. Cir. 2000)).

Page 7 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

8
We review the agency’s decision under the standard of the
Administrative Procedure Act. 5 U.S.C. § 706(2)(A). In the
context of reviewing agency contract decisions, our “role . . . is
limited to determining whether the agency acted in accord with
applicable statutes and regulations and had a rational basis for
its decisions.” LeBoeuf, Lamb, Greene & MacRae, LLP v.
Abraham, 347 F.3d 315, 320 (D.C. Cir. 2003) (quoting Delta
Data Sys. Corp. v. Webster, 744 F.2d 197, 204 (D.C. Cir.
1984)). In this limited capacity, we must refrain from
“imposing [our] own views of proper procedures” upon the
Park Service and “improperly intrud[ing] into [its]
decisionmaking process.” Id. (quoting Vt. Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 525
(1978)). National Mall Tours is similarly constrained. As a
“disappointed bidder” challenging the agency’s decision to
award the contract to its competitor, National Mall Tours “must
show either that the agency’s decision lacked a rational basis
or that the ‘procurement procedure involved a clear and
prejudicial violation of applicable statutes or regulations.’” Id.
(quoting Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169
(D.C. Cir. 1973)).
III.
National Mall Tours’ first claim is that the responses
provided by Big Bus Tours in its proposal were “no longer
accurate or reliable” after the Exponent Transaction, and the
Park Service’s decision to proceed with the award in spite of
that necessarily “lacked a rational basis and was arbitrary,
capricious, and an abuse of discretion.” Appellant Br. 42.
We consider National Mall Tours’ theory against the
following backdrop. First, the Park Service has considerable
discretion to select and reject proposals under the Concessions
Act. According to its own procedures, the Park Service must

Page 8 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

9
reject a proposal when it determines that the offeror omitted
material information (rendering the proposal non“responsive”), with materiality being ascertained by the Park
Service. See 36 C.F.R. §§ 51.18, 51.3; J.A. 311. National Mall
Tours does not dispute that Big Bus Tours’ original proposal
was accurate and fully “responsive” to the Prospectus
requirements at the time of its submission, 36 C.F.R. § 51.18,
or that the Park Service rightfully decided that Big Bus Tours’
proposal was “best” in accordance with the Concessions Act
and selected Big Bus Tours to be the concessioner prior to
learning about the Exponent Transaction.
National Mall Tours takes issue with the Park Service’s
continued reliance on the original proposal once the agency
became aware of the Exponent Transaction. But there is no
regulatory guidance for how the Park Service must proceed if
an offeror’s ownership changes after a proposal is submitted.
Under these circumstances, it was reasonable for the agency to
make a limited request of the offeror to ascertain whether the
change in ownership impacted its existing proposal. The first
issue we consider is whether the response provided by Big Bus
Tours in its March 28 Letter constituted an unlawful
amendment. The answer will shape the scope of the
information the agency could consider in determining whether
to proceed with the award to Big Bus Tours.
A.
Offerors are generally prohibited from “amend[ing] or
supplement[ing]” a proposal following its submission. 36
C.F.R. § 51.15(a). National Mall Tours uses this prohibition to
craft an automatic-disqualification rule, arguing the Exponent
Transaction created inaccuracies and omissions in the proposal
that the Park Service could not rationally ignore but that Big
Bus Tours also was not allowed to cure without an unlawful

Page 9 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

10
amendment. Given such a predicament, National Mall Tours
suggests the Park Service had no choice but to reject Big Bus
Tours’ proposal as “invalid,” without considering the March 28
Letter. Appellant Br. 12-13. As this Court said of a
disappointed bidder’s thesis over half a century ago: “This is
an extremely ingenious argument but it is in our opinion
entirely unsound.” Fulton Iron Co. v. Larson, 171 F.2d 994,
997 (D.C. Cir. 1948).
We reject the notion that the agency’s knowledge of a
change in circumstances that might impact an offeror’s
proposal necessarily invalidates that proposal. Such a
straightjacketed approach assumes that any omission rendered
after submission is necessarily both material and detrimental to
the original proposal. But not every omission is per se material,
and even a material omission is not necessarily the death knell
National Mall Tours had hoped for. What if the Exponent
Transaction materially improved Big Bus Tours’ candidacy?
Or, to offer a more concrete example, suppose the number of
buses each offeror had at its disposal was critical to the Park
Service; and suppose Big Bus Tours said it had ten buses in its
proposal, but it later acquired five more without telling the Park
Service. Then, after learning the Park Service selected Big Bus
Tours, National Mall Tours wrote the agency an ominous
email: “Did you hear the news about Big Bus Tours’ buses?
Do you even know how many buses it has at this point?” Under
National Mall Tours’ game of gotcha, the agency’s knowledge
of a potential change to the proposal in a category of
information it deems material renders the proposal invalid and
disqualifies the offeror.
Given the Concessions Act’s goal of obtaining the best
concessioners, and the discretion afforded to the Park Service
to evaluate the merits of proposals, we see no basis for
automatic disqualification when no regulation calls for it.

Page 10 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

11
However, the issue remains whether it was permissible for the
Park Service to rely on the March 28 Letter to reach its decision
to proceed with the award to Big Bus Tours. Although
National Mall Tours asserts that the March 28 Letter
constitutes an unlawful amendment, it does not assert any
prejudice. For example, National Mall Tours does not claim it
should have received a “similar opportunity to amend or
supplement” its own proposal, 36 C.F.R. § 51.15(a), or that Big
Bus Tours gained an advantage in having an invitation to do
so. Indeed, National Mall Tours’ complaint is not that the letter
supplemented the proposal but rather that it let the proposal be,
allowing Big Bus Tours to rest on its pre-existing laurels.
Thus, there is no serious dispute that this case does not
involve a “clear and prejudicial” violation of the applicable
regulations. See LeBoeuf, 347 F.3d at 320. Our review is
instead limited to whether the agency’s decision to proceed
with the award “lacked a rational basis” based on the
information provided to it, including the March 28 Letter. See
id.
B.
Because the agency already decided Big Bus Tours had the
best proposal, the relevant inquiry is whether the Exponent
Transaction should have changed its calculus. In this context,
the question is not just whether the Exponent Transaction
impacted the proposal, but whether any such impact was
material. We think if the Park Service had a rational basis for
concluding there was no material change to Big Bus Tours’
proposal, then its decision to proceed with the award would
also be rational.
So, what changed? National Mall Tours does little to
substantiate its sweeping assertion that Big Bus Tours’

Page 11 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

12
proposal became “inaccurate and unreliable” following the
Exponent Transaction. The only inaccuracy it identifies in Big
Bus Tours’ proposal is a statement that no individual or entity
owned more than 25% of Big Bus UK, which was no longer
true following the Exponent Transaction. That fact was
revealed by the March 28 Letter, if not sooner by National Mall
Tours’ letter two days prior. Thus, National Mall Tours’ theory
relies primarily on alleged omissions. But the only omission it
points to is a disclosure required under an unscored portion of
Principal Selection Factor 3. 2
Principal Selection Factor 3 considers the “experience and
related background of the Offeror, including the past
performance and expertise of the Offeror in providing the same
or similar visitor services as those to be provided under the
concession contract.” J.A. 324. Under that selection factor, the
offeror must provide information about its organizational
structure that is “not . . . scored for selection purposes” but is
used “[t]o assist in the evaluation of proposals under this and
other selection factors.” J.A. 324. Relevant here, the offeror
must identify “all levels of parent organizations,” and “any
individual or business entity that holds or will hold a
controlling interest in the Offeror.” 3 J.A. 324 (emphasis
2

In the District Court, National Mall Tours claimed other parts of the
proposal were impacted by the Transaction, including responses to
Principal Selection Factor 4, which considers “the financial
capability of the offeror to carry out its proposal,” J.A. 329, and
certifications pertaining to civil and criminal liability. But it does
not press those arguments on appeal.
3
To the extent National Mall Tours is concerned about the possibility
of a nefarious offeror being able to postpone an anticipated change
in ownership until after submission of its proposal, it appears that
circumstance would be covered by the required disclosure of “any
individual or business entity that . . . will hold a controlling interest
in the Offeror.” J.A. 324 (emphasis added).

Page 12 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

13
added). National Mall Tours contends Exponent became an
entity with a “controlling interest” in Big Bus Tours, not just
its grandparent (Big Bus UK), and thus would have triggered a
disclosure about Exponent had the Transaction occurred prior
to submission. The Park Service disputes that is so, asserting
Exponent did not hold a “controlling interest” in Big Bus Tours
as that term is defined in the regulations. 4 See 36 C.F.R.
§ 51.84. The parties’ briefs are consumed by this question, but
we need not decide whether the Park Service’s rather
confounding interpretation of “controlling interest” is entitled
to deference on this point. 5 Even assuming that the Exponent
Transaction implicated the disclosure under Principal Selection
Factor 3, National Mall Tours fails to show it constituted a
material change to the proposal such that it was irrational for
the agency to proceed with the award. In the parlance of the
APA, it fails to show “prejudicial error.” 5 U.S.C. § 706.
The Park Service examined the facts before it regarding
the Exponent Transaction, and determined the transaction did
not render a material change in Big Bus Tours’ proposal.
National Mall Tours’ only response is that ownership changes
4

“Controlling interest” is defined as “an interest, beneficial or
otherwise, of sufficient outstanding voting securities or capital of the
concessioner or related entities that permits the exercise of
managerial authority over the actions and operations of the
concessioner.” 36 C.F.R. § 51.84.
5
The Park Service’s primary contention is that the phrase “permits
the exercise of managerial authority” means there must be evidence
of Exponent’s “inten[tion]” to exercise managerial authority over
Big Bus Tours. Appellee Br. 14. The District Court agreed. See
Nat’l Mall Tours of Wash., Inc. v. U.S. Dep’t of the Interior, No. 150529, 2016 WL 8711706, at *9 (D.D.C. Mar. 18, 2016). We save
that question for another day, but note that Black’s Law Dictionary
(10th ed. 2014) defines “permit” in terms of potentiality, not
actuality, e.g., “[t]o give opportunity for” or “[t]o allow.”

Page 13 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

14
are categorically material, attempting to override any agency
discretion in the matter. In particular, it points to the fact that
Park Service regulations require the agency to pre-approve
certain changes in ownership effectuated by existing
concessioners, 36 C.F.R. § 51.85(c), and failure to obtain the
agency’s assent constitutes a material breach of a concession
contract, id. § 51.88. But National Mall Tours concedes those
regulations do not apply to offerors. Even if the regulations did
apply, under the Park Service’s interpretation of the preapproval regime, the Exponent Transaction would not require
its approval. The Park Service’s view is supported by our dicta
in Amfac Resorts, LLC v. Dep’t of the Interior, 282 F.3d 818,
836-38 (D.C. Cir. 2002), vacated in part on other grounds sub
nom. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803
(2003), which suggested that prior approval is only required
under 36 C.F.R. § 51.85(c) when the ownership change is
effectuated by the concessioner itself, not by a parent or
grandparent. In light of our dicta, the Park Service’s
interpretation is certainly a “permissible” one. Decker v. Nw.
Envtl. Def. Ctr., 133 S. Ct. 1326, 1326, 1337 (2013). In sum,
we see nothing categorically material about the ownership
change here.
By considering materiality in the abstract, National Mall
Tours fails to grapple with the critical question in this case
given the posture of the award process: it is not whether
ownership information is material, but rather whether the
change in ownership rendered a material change in Big Bus
Tours’ proposal. This is a case-specific inquiry, and National
Mall Tours offers no reason to question the Park Service’s
judgment that the Exponent Transaction did not result in such
a change. Thus, we affirm the District Court’s grant of
summary judgment as to the Park Service’s decision to award
the contract to Big Bus Tours.

Page 14 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

15
IV.
National Mall Tours’ second claim challenges the Park
Service’s failure to notify certain congressional committees of
the proposed concession contract with Big Bus Tours.
The Concessions Act requires the Park Service to “submit”
the “proposed concession contract . . . to the Committee on
Natural Resources of the House of Representatives and the
Committee on Energy and Natural Resources of the Senate” if
the contract has “anticipated annual gross receipts in excess of
$5,000,000 or a duration of more than 10 years.” 54 U.S.C.
§ 101913(6). In such cases, the Park Service “shall not award
[the] proposed concession contract . . . until at least 60 days
subsequent to the notification” of these congressional
committees. Id. National Mall Tours claims the Park Service
should have submitted the contract to these congressional
committees because it had anticipated gross receipts exceeding
$5 million. The Park Service responds that National Mall
Tours lacks standing to assert this claim and that, in any event,
notification was not required because it reasonably relied on
estimates suggesting the $5 million threshold would not be
crossed. In considering whether National Mall Tours has
standing, we assume it would succeed on the merits, i.e., that
these congressional committees should have been notified.
See City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003).
To demonstrate Article III standing, a plaintiff must
“establish, as an ‘irreducible constitutional minimum,’ that
they face ‘injury in fact’ caused by the challenged conduct and
redressable through relief sought from the court.” Safari Club
Int’l v. Jewell, 842 F.3d 1280, 1285 (D.C. Cir. 2016). “The
party invoking federal jurisdiction bears the burden of
establishing these elements.” Scenic Am., Inc. v. U.S. Dep’t of

Page 15 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

16
Transportation, 836 F.3d 42, 48 (D.C. Cir. 2016) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). On
summary judgment, “the plaintiff can no longer rest
on . . . mere allegations, but must set forth by affidavit or other
evidence specific facts” that “at least raise a disputed issue of
fact as to each element of standing.” Id. at 48-49 (citation and
alterations omitted).
National Mall Tours claims its injury was being deprived
of “a legally valid procurement process,” which it asserts was
caused by the Park Service’s failure to submit the concession
contract to these two congressional committees 60 days prior
to finalizing the award to Big Bus Tours. Appellant Br. 49.
We have previously recognized that a “disappointed bidder”
has the right to “a legally valid procurement process,” the
deprivation of which constitutes a cognizable injury. Alvin Lou
Media, Inc. v. FCC, 571 F.3d 1, 3 (D.C. Cir. 2009) (citation
omitted); see also U.S. Airwaves, Inc. v. FCC, 232 F.3d 227,
232 (D.C. Cir. 2000); Scheduled Airlines Traffic Offices, Inc.
v. Dep’t of Def., 87 F.3d 1356, 1358 (D.C. Cir. 1996). An
injury to “a bidder’s right to a fair procurement is obviously an
injury both traceable to the alleged illegality in a procurement
and redressable by any remedy that eliminates the alleged
illegality.” Nat’l Mar. Union of Am. v. Commander, Military
Sealift Command, 824 F.2d 1228, 1237-38 (D.C. Cir. 1987).
As such, the bidder “need not show that it would be successful”
in a new round of procurement, “but only that it was able and
ready to bid and that the decision of the [agency] prevented it
from doing so on an equal basis.” Alvin Lou Media, 571 F.3d
at 6 (quoting High Plains Wireless LP v. FCC, 276 F.3d 599,
605 (D.C. Cir. 2002)).
National Mall Tours is surely disappointed, but for
purposes of this claim, it does not substantiate its assertion that
it was harmed by an unlawful procurement process. National

Page 16 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

17
Mall Tours acknowledges that submission of the contract to the
committees was not required until after the agency made its
award decision and the competitive process was effectively
over. It is not self-evident that a bidder with a stake in the
award process would be injured by the agency’s failure to
inform congressional committees of its final award decision;
and National Mall Tours does not advance its own theory
except to point to the fact that notification was a requisite “last
step” in the award process. Appellant Br. 54. Yet National
Mall Tours appears to concede this last step implicates interests
entirely distinct from the competitive award process,
acknowledging that the “deficiency” it complains of “does not
require the agency to undo anything it has done or require
changes to any proposals or a new evaluation by the agency.”
Id. In other words, it asserts no flaw in the process by which
the agency reached its final award decision. Rather than ask to
undo the award or give it another opportunity to bid, National
Mall Tours “merely” seeks to have the final, ongoing
concession contract submitted to two congressional
committees. Id.
The disconnect between National Mall Tours’ theory of
standing and that of the ordinary disappointed bidder is further
highlighted when we consider causation. Our procedural
injury cases are instructive. In such cases, where a plaintiff
challenges an agency’s failure to effectuate a required
procedure, the plaintiff must show “it is substantially probable
that the procedural breach will cause the essential injury to the
plaintiff’s own interest.” Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 665 (D.C. Cir. 1996) (en banc); accord WildEarth
Guardians v. Jewell, 738 F.3d 298, 305-07 (D.C. Cir. 2013).
Among other things, that means showing a connection between
“the omitted procedure and some substantive government
decision that may have been wrongly decided because of the
lack of the procedure.” City of Waukesha, 320 F.3d at 234

Page 17 of 18

USCA Case #16-5080

Document #1682922

Filed: 07/07/2017

18
(internal quotation marks and alterations omitted) (quoting Fla.
Audubon Soc’y, 94 F.3d at 668). Here, however, National Mall
Tours asserts no connection between the agency’s failure to
notify the two congressional committees and its substantive
decision to award the contract to Big Bus Tours. Thus, even if
the agency should have notified the congressional committees
as part of the award process, National Mall Tours has not
shown how that failure caused it any cognizable injury. Cf.
DIRECTV, Inc. v. FCC, 110 F.3d 816, 830 (D.C. Cir. 1997)
(disappointed bidder failed to show agency’s decision to allow
cable industry to participate in auction caused it any injury
where only one cable company participated in the auction and
that company was not the highest bidder). In sum, National
Mall Tours fails to demonstrate it has standing to bring this
claim.
V.
For the foregoing reasons, we affirm the District Court’s
grant of summary judgment to the Park Service regarding the
agency’s decision to award the contract to Big Bus Tours.
Because we hold National Mall Tours lacks standing to
bring its claim regarding submission of the contract to certain
congressional committees, the District Court lacked
jurisdiction to hear it. Thus, we vacate the portions of the
District Court’s order addressing that claim and remand the
case with instructions to dismiss it for lack of jurisdiction. See
Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1207 (D.C.
Cir. 2013); Nader v. Fed. Election Comm’n, 725 F.3d 226, 230
(D.C. Cir. 2013).
So ordered.

Page 18 of 18