                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 5 1999
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 GLOVER CONSTRUCTION CO.,
 INC.,

          Plaintiff-Appellant,

               v.                                        No. 97-7122
                                                   (D.C. No. 95-CV-467-B)
 BRUCE BABBITT, Secretary of                             (E.D. Okla.)
 Department of Interior,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before EBEL, BRISCOE, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the

case is ordered submitted without oral argument.

      Plaintiff Glover Construction Company brought this action alleging



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant failed to require the Bureau of Indian Affairs to require the Cherokee

Nation to abide by the provisions of the Federal Acquisition Regulations (FARS),

48 C.F.R. § 1 et seq . The district court denied Glover Construction’s request for

injunctive relief and dismissed the action. We dismiss this appeal on mootness

grounds, and do not address the more difficult questions of standing and

jurisdiction.

      On June 15, 1995, the Cherokee Nation of Oklahoma began soliciting bids

for construction of “Greasy Road.” Four construction companies responded to the

bid: Mouache-Capote Construction, Frix Foster Construction, Hub Construction,

and Glover Construction. At the bid unsealing, the bid of Hub Construction was

rejected as nonresponsive to the solicitation. The bid of Mouache-Capote was the

lowest, followed by the bid of Frix Foster Construction, and then Glover

Construction. Although the bid of Mouache-Capote failed to include unit prices,

its bid did include the number of units and the total price for each specific item.

Thus, the unit price was readily ascertainable from the face of the bid. The

Cherokee Nation did not reject the bid of Mouache-Capote as nonresponsive

under 48 C.F.R. § 14.301, but allowed it to correct its bid. The contract was

awarded to Mouache-Capote.

      Glover Construction filed this action, contending defendant, through the

Bureau of Indian Affairs (BIA), failed to require the Cherokee Nation to adhere to


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federal procurement standards. The Cherokee Nation was allegedly bound by

such regulations after negotiating for their application in accordance with 25

U.S.C. § 458cc(e). Glover Construction sought injunctive relief requiring

defendant to direct the BIA to order the Cherokee Nation to set aside the bid of

Mouache-Capote Construction as nonresponsive and to rebid the project in

accordance with federal standards. In its amended complaint, Glover

Construction alleged that during construction of the road the Cherokee Nation had

permitted Mouache-Capote Construction to increase the contract price by over

$100,000 without requiring bids, which was not in accordance with the contract

modification requirements of FARS and 41 U.S.C. § 254b. The district court held

the failure to explicitly list unit prices was not a material alteration, but was a

correctable “minor irregularity” under the regulations, and that Glover

Construction was not entitled to injunctive relief because it had not shown

irreparable harm.

         The Greasy Road was completed no later than May 20, 1997. Therefore,

Glover Construction’s claims for injunctive relief to require rebidding for the

contract award and for subsequent contract modifications are moot.       See

Columbian Rope Co. v. West , 142 F.3d 1313, 1316 (D.C. Cir. 1998);

Neighborhood Transp. Network, Inc. v. Pena       , 42 F.3d 1169, 1171-72 (8th Cir.

1994).


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       The only remaining issue is Glover Construction’s request for an injunction

requiring defendant to direct the Cherokee Nation to abide by the regulations

during future bidding of projects. In essence, Glover Construction assumes the

situation that occurred here will be exactly replicated in the future and asks that

an injunction issue now to insure it is protected later.

       These circumstances do not present an ongoing case or controversy over

which this court may exercise jurisdiction under Article III.   See Jones v.

Temmer , 57 F.3d 921, 922 (10th Cir. 1995). At best, Glover Construction’s

argument is construed as one invoking the “capable of repetition, yet evading

review” exception to the mootness doctrine.       See Fischbach v. New Mexico

Activities Ass’n , 38 F.3d 1159, 1161 (10th Cir. 1994). That exception does not

save the claim as there is no “reasonable expectation” that Glover Construction

will suffer the same injury,   see West , 142 F.3d at 1317, and no reason for this

court to assume the issue is not capable of meaningful review if Glover

Construction is subjected to the same allegedly unlawful treatment in the future,

see Pena , 42 F.3d at 1172.    See also Jones , 57 F.3d at 923 (rejecting argument

that claim is not moot based on possibility that legislature could reinstate law as

“too conjectural and speculative to avoid a finding of mootness”).

       We add that Glover Construction’s request for injunctive relief is nothing

more than an artfully phrased prayer for the court to require Cherokee Nation to


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obey the law in the future. Such injunctions are not appropriately issued.    See

Hughey v. JMS Dev. Corp. , 78 F.3d 1523, 1531 (11th Cir. 1996) (“[A]ppellate

courts will not countenance injunctions that merely require someone to obey the

law.”) (internal quotation omitted);   Epstein Family Partnership v. Kmart Corp.      , 13

F.3d 762, 771 (3d Cir. 1994) (recognizing while “an injunction may be framed to

bar future violations that are likely to occur, . . . [b]road non-specific language

that merely enjoins a party to obey the law or comply with an agreement . . . does

not give the restrained party fair notice of what conduct will risk contempt”)

(internal quotation omitted).

       Glover Construction’s appeal is DISMISSED as moot.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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