## Facts

- Jacksonville enacted a 1984 ordinance requiring that 10% of city contracting funds each fiscal year be set aside for Minority Business Enterprises.
- A contractors’ association whose members regularly bid on city work alleged its members would have bid on set-aside contracts but for the ordinance, asserting an Equal Protection violation.
- The federal district court granted summary judgment to the association and held the ordinance unconstitutional.
- The Eleventh Circuit vacated and remanded, holding the association lacked standing because it failed to show any member would have obtained a contract absent the program.
- After certiorari was granted, Jacksonville repealed the ordinance and enacted a replacement that continued to provide preferential treatment in certain city contracts for certified Black- and female-owned businesses.

## Issues

1. Whether repeal and replacement of the challenged contracting ordinance rendered the case moot.
2. Whether a plaintiff challenging a race- or gender-conscious set-aside must show it would have obtained a contract absent the program, or instead may establish injury by showing it is able and ready to bid but is denied an equal opportunity to compete.

## Decision

- The Supreme Court held the case was not moot because repeal followed by a substantially similar replacement ordinance constituted voluntary cessation, leaving a live controversy.
- The Court held the association had Article III standing because the injury in an equal protection “barrier” case is denial of equal treatment in the competitive process, not the ultimate loss of a contract.
- The Court reversed the Eleventh Circuit and remanded.

## Legal Principles

- Voluntary cessation of challenged conduct does not moot a case where the defendant remains free to resume the conduct and has replaced it with a materially similar policy affecting the plaintiff in the same way.
- In equal protection challenges to government-created barriers to obtaining benefits, injury in fact is the denial of equal treatment—i.e., inability to compete on equal footing—not proof the plaintiff would have secured the benefit.
- A plaintiff has standing by showing it is “able and ready” to compete and that a discriminatory policy prevents equal participation in the bidding process.

## Conclusion

The Court ruled that Jacksonville’s replacement of its set-aside ordinance did not moot the dispute and that nonfavored contractors have standing when they are ready to bid but are denied an equal chance to compete by a race- or gender-based contracting preference.


Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993)