Pernix Federal, LLC v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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PERNIX FEDERAL, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-2327
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Appeal from the United States Court of Federal Claims
in No. 1:24-cv-00751-AOB, Judge Armando O. Bonilla.
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Decided: July 2, 2026
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J OHN H OWELL , Halloran & Sage, Washington, DC, ar-
gued for plaintiff-appellant. Also represented by J OHN
RANDOLPH MAC P HERSON.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
P ATRICIA M. MCCARTHY , CORINNE A NNE N IOSI, BRETT
SHUMATE.
______________________
Case: 24-2327 Document: 93 Page: 1 Filed: 07/02/2026

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PERNIX FEDERAL, LLC v. US 2
Before REYNA, CHEN, and STOLL , Circuit Judges.
S TOLL , Circuit Judge.
Pernix Federal, LLC appeals from a decision of the
United States Court of Federal Claims concerning the
United States Department of State’s procurement for the
construction of a new consulate facility in Adana, Türkiye.
Because the underlying dispute between the parties is
moot, we lack jurisdiction over Pernix Federal’s claims.
BACKGROUND
At the heart of this dispute is Pernix Federal’s conten-
tion that the State Department improperly disqualified
Pernix Federal from participating in the procurement for
the Adana consulate project. Specifically, the State De-
partment determined that Pernix Federal—as a stand-
alone entity—was not eligible for the award because Pernix
Federal had prequalified for the procurement as a de facto
joint venture, the procurement required de facto joint ven-
tures to be separately registered in the System for Award
Management (SAM), and the joint venture was not so reg-
istered. In response, Pernix Federal filed a bid protest at
the Court of Federal Claims, alleging that the State De-
partment’s actions and determination were arbitrary, ca-
pricious, and an abuse of discretion. The Court of Federal
Claims thereafter issued the Bench Ruling Decision that is
the subject of this appeal. In that decision, the Court of
Federal Claims determined that (1) Pernix Federal’s argu-
ments related to the SAM registration requirement were
waived, and (2) the State Department did not act arbitrar-
ily or capriciously in declining to restore Pernix Federal as
a stand-alone entity to the competition because it could not
on its own meet the project’s eligibility criteria.
Pernix Federal appealed the Court of Federal Claims’
decision to this court. While this appeal was pending, the
Government moved to dismiss the appeal as moot because
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PERNIX FEDERAL, LLC v. US 3
the State Department terminated the Adana consulate pro-
ject in full, including canceling the contract underlying
Pernix Federal’s bid protest. Pernix Federal’s appeal and
the Government’s motion to dismiss are now before us.
D ISCUSSION
“On appeal, . . . a case becomes moot ‘when the issues
presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” ABS Glob., Inc. v. Cy-
tonome/ST, LLC, 984 F.3d 1017, 1020 (Fed. Cir. 2021)
(quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).
A “case remains live [a]s long as the parties have a concrete
interest, however small, in the outcome of the litigation.”
MOAC Mall Holdings LLC v. Transform Holdco LLC,
598 U.S. 288, 295 (2023) (alteration in original) (quotation
marks omitted) (quoting Chafin v. Chafin, 568 U.S. 165,
172 (2013)); Chafin, 568 U.S. at 172 (“[T]he parties must
‘continue to have a “personal stake”’ in the ultimate dispo-
sition of the lawsuit.” (citation omitted)).
We conclude that Pernix Federal no longer has an in-
terest in the procurement for the Adana consulate. The
State Department sent a Diplomatic Note to the Ministry
of Foreign Affairs of the Republic of Türkiye explaining
that the project has been “officially terminated by the
United States Government,” which “will no longer proceed
with the current construction of the [New Consulate Com-
pound].” SAppx 1.1 The Government reiterated this point
at oral argument, emphasizing that the Diplomatic Note
represents the position of the United States Government
and explaining that there is no plan to build a new consu-
late in Türkiye at this time. Oral Arg. at 20:50–23:22,
https://www.cafc.uscourts.gov/oral-arguments/24-
1 We refer to the Supplemental Appendix filed with
the Government’s motion to dismiss as “SAppx” throughout
this opinion. See ECF No. 85.
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PERNIX FEDERAL, LLC v. US 4
2327_06082026.mp3. Given the cancellation of the project,
Pernix Federal has no interest in any contract for this pro-
ject. And any future solicitation for such a project would
not include the eligibility question at issue here because
the State Department has removed language referring to
de facto joint ventures from its procurement regulations.
Appellee’s Br. 5–6; ECF No. 91 at 4.
But that does not end the mootness inquiry. An offeror
may have a concrete interest in the outcome of a bid protest
when seeking bid preparation and proposal costs.
28 U.S.C. § 1491(b)(2) (“[T]he courts may award any relief
that the court considers proper, including declaratory and
injunctive relief except that any monetary relief shall be
limited to bid preparation and proposal costs.” (emphasis
added)); see also Mitchco Int’l, Inc. v. United States,
26 F.4th 1373, 1379–80 (Fed. Cir. 2022). In this case, how-
ever, Pernix Federal lacks any such concrete interest.
Pernix Federal did not seek recovery of its bid preparation
and proposal costs below nor on appeal. See J.A. 56–57;
Appellant’s Br. 55; see also Reply Br. 20–21.
At best, Pernix Federal asserts that it is entitled to a
$1.5 million stipend that was to be provided to “pre-quali-
fied Offerors that do not receive the . . . contract award”
“[t]o offset some of the cost of site visits and costs of devel-
oping a design.” SAppx 24; ECF No. 88 at 2–3. However,
Pernix Federal concedes that it has not sought the payment
of the stipend in this appeal and would need to file a certi-
fied claim under the Contracts Disputes Act to recover that
stipend if the State Department declines to pay it. Oral
Arg. at 0:45–3:52, 8:01–10:18. As a result, Pernix Federal
is without a concrete interest in the outcome of this case
and the appeal is moot. MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007) (noting that we do not decide
cases for the sole purpose of “advising what the law would
be upon a hypothetical state of facts” (quoting Aetna Life
Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240–
41 (1937))).
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PERNIX FEDERAL, LLC v. US 5
Still, Pernix Federal contends that “[j]udicial economy
will be served by adjudicating this appeal rather than
deeming it moot.” ECF No. 88 at 2; see also Oral Arg.
at 7:32–7:51. We are not persuaded. The basis of Pernix
Federal’s argument is that it will have to litigate the same
issue presented in this appeal—whether Pernix Federal
was legitimately prequalified as a standalone entity and
eligible to receive the contract award—in an independent
and as-of-yet-unfiled action over the stipend. ECF No. 88
at 3; see also Oral Arg. at 7:32–7:51. However, counsel for
the Government clearly explained that “the dispute over
the unpaid stipend has nothing to do with the eligibility
determination at issue here.” Oral Arg. at 17:11–18:21. In-
deed, the Government helpfully clarified that “the State
Department . . . authorized [counsel for the Government]
to state, concretely, that there will not be a decision that
the eligibility determination is the basis for nonpayment of
the stipend.” Oral Arg. at 18:21–20:25. Thus, we reject
Pernix’s argument and conclude that the appeal before us
is moot and judicial economy will not be served by adjudi-
cating this appeal.
Because the Government canceled the underlying con-
tract, “[u]nder Munsingwear . . . , the proper disposition of
this appeal is vacatur” of the Court of Federal Claims’ de-
cision “and remand with a direction to dismiss [Pernix Fed-
eral’s] complaint” as moot. Elec. Data Sys. Corp. v. Rice,
988 F.2d 128, 128 (Fed. Cir. 1992) (unpublished table deci-
sion) (citing United States v. Munsingwear, Inc., 340 U.S.
36, 39 (1950)); see Alvarez v. Smith, 558 U.S. 87, 97 (2009)
(explaining that the “ordinary practice” of vacatur applies
except where mootness is the result “of voluntary forfeiture
of a legal remedy” (cleaned up) (citing Munsingwear,
340 U.S. at 40)); see also U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 24 (1994). The Supreme Court
has explained that “[v]acatur is in order when mootness oc-
curs through happenstance—circumstances not attributa-
ble to the parties—or, relevant here, the ‘unilateral action
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PERNIX FEDERAL, LLC v. US 6
of the party who prevailed in the lower court.’” Arizonans
for Off. Eng. v. Arizona, 520 U.S. 43, 71–72 (1997) (quoting
Bancorp, 513 U.S. at 23). And that is only fair. “A party
who seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance” or the “unilat-
eral action of the party who prevailed below” “ought not in
fairness be forced to acquiesce in the judgment.” Bancorp,
513 U.S. at 25. Vacatur avoids this unfairness because it
“‘clears the path for future relitigation’ by eliminating a
judgment the loser was stopped from opposing on direct re-
view.” Arizonans, 520 U.S. at 71.
Because the State Department took unilateral action
to moot this appeal, this case “falls squarely within the
Court’s established practice” of “vacat[ing] the judgment
below and remand[ing] with a direction to dismiss.” See
Azar v. Garza, 584 U.S. 726, 729 (2018) (quoting Mun-
singwear, 340 U.S. at 39); see also Great W. Sugar Co.
v. Nelson, 442 U.S. 92, 93 (1979) (holding that vacatur is
“the duty of the appellate court” (quoting Duke Power Co.
v. Greenwood Cnty., 299 U.S. 259, 267 (1936))). Vacatur,
therefore, is appropriate.
CONCLUSION
For the foregoing reasons, the Government’s motion to
dismiss this appeal is granted. The judgment of the Court
of Federal Claims is vacated, and the case is remanded for
the Court of Federal Claims to dismiss Pernix Federal’s
complaint.
DISMISSED, VACATED, AND REMANDED
COSTS
No costs.
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