Silverbow Construction Co. v. Alaska Department of Administration, 012812 AKPRO, 1JU-11-01010 CI

Docket Nº:1JU-11-01010 CI
Opinion Judge:LOUIS J. MENENDEZ Superior Court Judge
Party Name:SILVERBOW CONSTRUCTION CO., Appellant, v. ALASKA DEPARTMENT OF ADMINISTRATION, DIVISION OF GENERAL SERVICES, Appellee.
Case Date:January 28, 2012
Court:Superior Court of Alaska
 
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SILVERBOW CONSTRUCTION CO., Appellant,

v.

ALASKA DEPARTMENT OF ADMINISTRATION, DIVISION OF GENERAL SERVICES, Appellee.

No. 1JU-11-01010 CI

Superior Court of Alaska, First Judicial District, Juneau

January 28, 2012

ORDER DENYING SILVERBOW'S APPEAL OF THE DECISION OF THE DEPARTMENT OF ADMINISTRATION. DIVISION OF GENERAL SERVICES

LOUIS J. MENENDEZ Superior Court Judge

I. INTRODUCTION

Silverbow Construction Co. ("Silverbow") appeals the final administrative decision ("Decision") of the Department of Administration, Office Of Administrative Hearings ("OAH") on two grounds. First, Silverbow alleges that the Department of Administration ("Department of Administration"), Division of General Services ("General Services") abused its discretion because it did not disqualify the winning bid of Alaska Commercial Contractors, Inc. ("Alaska Commercial") for a contract to renovate the exterior of the Governor's Mansion1 on the grounds that it exceeded the ten-page limit in the Request for Proposal ("RFP"). Second, Silverbow alleges that General Services violated Silverbow's right to equal protection under Article 1, Section 1 of the Alaska Constitution by creating two classes of proposals and then treated them differently when it exempted Alaska Commercial's proposal from the ten-page limit.

The court upholds the Department's decision and denies Silverbow's appeal on both grounds. First, the length of Alaska Commercial's proposal—fifteen pages2 —represents a minor variance which did not confer a substantial advantage on Alaska Commercial over other bidders. Thus, General Services had a reasonable basis foi its decision and did not abuse its discretion. Second, the record contains no evidence that General Services created two classes of proposals, and then treated them differently according to page number, visual appearance, or any impermissible ground. Thus, the court denies Silverbow's equal protection claim.

II. FACTS AND PROCEEDINGS

Pursuant to Rule of Appellate Procedure 212(c)(2), the parties agree to the following set of facts as originally found by the Office Of Administrative Hearings.3 On November 18, 2010, General Services issued Request for Proposal (RFP) number 2011-0222 for renovation of the exterior of the Governor's Mansion. The RFP requested two proposals: a Price Proposal, scored according to the Alaska offeror's preference (10 points) and price (20 points); and a Technical Proposal, scored according to the bidders' responses to four technical criteria—project understanding and methodology (15 points), experience and qualifications (10 points), a management plan (35 points), a project schedule (10 points). The proposals were reviewed by a panel of six individuals, one of whom first determined the "responsiveness" of the proposals—whether a proposal complied with the RFP criteria and submittal instructions.

The RFP "submittal checklist" provided bidders with specific instructions on how to prepare their proposals. It contained two statements regarding the formatting of the proposals, both of which are at issue in this case. Paragraph eight of the submittal checklist contained the following caution

The maximum number of attached pages (each printed side equals one page) for criteria Responses shall not exceed: 10 pages. Page limit applies solely to the attachments to the Contractor's Technical Proposal form. CAUTION: Criteria Responses which exceed the maximum page limit or otherwise do not meet requirements stated herein, may result in disqualification.

Paragraph six of the submittal checklist includes a second caution: "CAUTION: small print or typeface that is difficult to read will negatively influence evaluation of your submittal."

On January 13, 2011, four contractors submitted proposals in response to the RFP: Alaska Commercial, JKM General Contractors LLC ("JKM"), North Pacific Erectors, Inc. ("North Pacific"), and Silverbow. General Services issued an Intent to Award the contract to Alaska Commercial on January 21, 2011, which listed Alaska Commercial as earning the highest overall score of 2, 419 points and Silverbow as earning the second highest score of 1, 655 points.4 General Services formally awarded the contract to Alaska Commercial on February 4, 2011. Silverbow filed a protest with General Services on January 28, 2011, pursuant to AS 36.30.560 and .565. It argued that Alaska Commercial's bid should have been disqualified on the grounds that it exceeded the ten-page limit in the RFP. On February 3, 2011, General Services denied Silverbow's protest.

On February 11, 2011, Silverbow filed an appeal of General Services' February 3 decision with the Commissioner of Administration. In its appeal, Silverbow sought to recover costs incurred in the preparation of its proposal. On April 7, 2011, OAH heard the appeals of Silverbow and North Pacific, the other bidder who protested the award. Because the case would be decided on the administrative record, Silverbow was allowed to supplement the record. On October 19, 2011, an administrative law judge rendered a final decision upholding General Services' denial of Silverbow's protest on the grounds that Alaska Commercial gained no substantial advantage as a result of General Services' acceptance of its fifteen-page proposal. Silverbow's appeal of that decision is the matter now before the court.

III. DISCUSSION

The issues in this case are straight forward. To reiterate, Silverbow alleges that (1) General Services abused its discretion by not disqualifying Alaska Commercial when its proposal exceeded the ten-page limit in the RFP, and (2) that General Services violated Silverbow's right to equal protection under Article 1, Section 1 of the Alaska Constitution by exempting Alaska Commercial from the page limit, while not extending the same opportunity to other bidders.

A. Standard of Review

The court reviews "the merits of agency action on matters committed to agency discretion, " such as awarding a contract, under the abuse of discretion standard.5 Under this standard, the court inquires whether the decision was "arbitrary, unreasonable or an abuse of discretion."6 "Where an agency fails to consider an important factor in making its decision, the decision will be regarded as arbitrary." In Lakloey, Inc. v. University of Alaska, the supreme court reiterated that courts review "an agency's determination of [a bidder's] responsiveness under the reasonable basis standard."7

As to Silverbow's equal protection claim, the court applies its "independent judgment to decide constitutional issues, " and "will adopt a reasonable and practical interpretation in accordance with common sense based upon the plain meaning and purpose of the provision and the intent of the framers."8

B. The Department Did Not Abuse Its Discretion When It Waived A Minor Informality.

The legislature vested the authority to devise and...

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