S. Ct. Civ. No. 2016-0062

In an injunction proceeding, a governmentally-owned corporation's decision to award a concession agreement to a transportation company is subject to judicial review-and a challenge to that decision has not been mooted by the execution of the concession agreement. The plaintiff taxi association lacks standing under the general writ of review statutes, 5 V.I.C. §§ 1421-1423, but does have standing to bring the action under 5 V.I.C. § 80 because the two required elements are present: an act by a territorial officer or employee, and the allegation that such an act was either illegal or unauthorized, or that it constituted a wrongful disbursement of territorial funds. The execution of a contract does not moot a challenge to the procedures used to secure it, where it is possible that dissatisfied bidders will be subject to those same procedures again. Thus even though the dock is already being serviced under the concession agreement, this challenge to the decision to award the concession agreement not moot. On the merits, the arbitrary-and-irrational framework from federal case law is not applicable here, but the decision is not immune from judicial review and the Legislature intended for the defendant publicly owned corporation to exercise the decision-making authority that a private corporation would enjoy at common law, and consequently, to be subject to the same level of judicial scrutiny. Since the decision here is challenged as unauthorized-by virtue of alleged derogation of the Request for Qualifications' requirements-judicial review of the decision is appropriate, but the challenge is meritless. The plaintiff did not demonstrate a reasonable probability that the corporation acted in excess of its authority when it awarded the concession agreement, let alone that it acted in bad faith, fraudulently, or illegally. Thus likelihood of success on the merits weighed against the issuance of a preliminary injunction. The argument that any potential harm was not irreparable was not raised before the Superior Court, and it is waived for purposes of this appeal. No showing was made of an adverse effect on the plaintiffs' ability to compete. The argument that the Superior Court erred in concluding considerations of the public interest militated strongly against the issuance of a preliminary injunction is raised for the first time on appeal, thus it is waived and-in any event-plaintiff wholly failed to substantiate the claim that award of this concession agreement has eroded public confidence in the procurement process. Accordingly plaintiff failed to carry the burden of demonstrating a clear entitlement to an injunction prohibiting award of this concession, and the Superior Court's October 26, 2016 order is affirmed.