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Civil Procedure – Mootness – government contracts

Civil Procedure
Mootness; government contracts

Where an unsuccessful bidder lost its request for an injunction and did not seek interlocutory review, a later action challenging the successful bid is moot.

“The supreme court’s focus in PRN was on the expectation that PRN, as an aggrieved bidder, would ‘“zealously protect” the public interest and the public purse by taking legal action to ensure that a contract is not awarded to the wrong bidder.’ See id., ¶43 (citation omitted). By focusing on the bidder’s responsibility to the public, the supreme court held that an aggrieved bidder is ‘required’ to take any legal steps available ‘to protect [its] interest[s],’ see id., ¶48, and ‘ensure that a contract is not awarded to the wrong bidder,’ see id., ¶43. In that light, PRN could have, and should have, filed a motion for an injunction to protect its interests.”

“Here, after the circuit court’s adverse decision on its motion for an injunction, Managed Health could have, and should have, asked the circuit court to stay proceedings and sought relief from a non-final order with this court. See WIS. STAT. § 808.03(2)(b) (permitting review of a non-final order with permission of the court if the appeal will ‘[p]rotect the petitioner from substantial or irreparable injury’). The parties agree that DHS informed the court on the record that DHS was ‘prepared to move forward with the signing [of the contracts] in the absence of a stay or injunction,’ after the circuit court denied Managed Health’s motion for injunctive relief. Despite being notified that DHS intended to enter into contracts with the winning proposers, Managed Health failed to take further action to prevent DHS from doing so. Because it did not, DHS signed contracts with the four winning proposers, and now Managed Health’s claims are moot.


Recommended for publication in the official reports.

2010AP2551 Managed health Services Ins. Corp. v. DHS

Dist. I, Milwaukee County, Sosnay, J., Brennan, J.

Attorneys: For Appellant: Busch, John A., Milwaukee; Finerty, John D., Jr., Milwaukee; Janczewski, Thomas A., Milwaukee; For Respondent: Means, Steven P., Madison; Beilin, Lewis W., Madison

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