Arizona Court of Appeals Division Two holds that although taxpayers may have standing to challenge a government’s procurement of services, the challenge becomes moot once the services are rendered and the government pays for them.

Pima County procured services from a contractor for a construction project.  The County did not follow the usual competitive bidding process under state law (see A.R.S. §§ 34-603, 34-604), instead invoking its emergency procurement authority (see A.R.S. § 34-606).

The County entered into an agreement with the contractor.  Local taxpayers sued, seeking to enjoin the agreement on the ground that the procurement process violated state law.  But the taxpayers did not seek to stay or otherwise enjoin performance of the agreement while the lawsuit was pending, so the County and the contractor performed: the contractor built the project, and the County paid the contractor.  Eventually the trial court entered summary judgment for the County.

The Court of Appeals first confirmed that the taxpayers had standing.  Taxpayers in Arizona generally have standing to challenge “illegal expenditures” of government.  Here, the taxpayers claimed that the County spent tax-generated funds on a project without complying with the statutory process, which, if true, would be an illegal expenditure.

The Court of Appeals then held that the taxpayers’ claims were moot.  The construction project had been completed during the lawsuit, so the tax-generated funds that the taxpayers were concerned about had already been spent.  Courts could no longer provide the taxpayers any “meaningful relief.”

The Court of Appeals acknowledged its discretion to decide moot issues that are of great public importance and likely to recur, or issues that evade review.  But it declined to exercise its discretion here because the taxpayers had failed to take “appropriate steps to prevent an issue from becoming moot,” such as seeking a stay or temporary injunction of performance of the agreement while the lawsuit was pending.

Presiding Judge Eppich authored the opinion.  Judge Espinosa and Judge Eckerstrom joined.