Brown v. State, Dept. of Manpower Affairs

• Decision Date: 04 March 1981
• Citation: 426 A.2d 880
• Parties: The Partnership of Brooks BROWN, Curtis M. Payson, Joseph B. Pellicani and Joseph M. Cloutier v. STATE of Maine, DEPARTMENT OF MANPOWER AFFAIRS, and Douglas Schmidt.
• Court: Maine Supreme Court

Page 880

426 A.2d 880

The Partnership of Brooks BROWN, Curtis M. Payson, Joseph B.

Pellicani and Joseph M. Cloutier v. STATE of Maine, DEPARTMENT OF MANPOWER AFFAIRS, and Douglas Schmidt.

Supreme Judicial Court of Maine.

Argued Sept. 5, 1980.

Decided March 4, 1981.

Strout, Payson, Pellicani, Cloutier, Hokkanen & Strong, Frederick M. Newcomb, III (orally), Rockland, for plaintiffs.

Patricia McDonough, Asst. Atty. Gen. (orally), Susan P. Herman, Asst. Atty. Gen., Augusta, for Department of Manpower Affairs.

Twitchell, Gray, Linscott & Badger, Richard M. Maraghy, Bangor, for Douglas Schmidt.

Before McKUSICK, C. J., and WERNICK, GODFREY, GLASSMAN and ROBERTS, JJ.

GLASSMAN, Justice.

The plaintiff, the Partnership of Brown, Payson, Pellicani and Cloutier, was the second lowest bidder on a public lease contract awarded by the defendant, the State's Department of Manpower Affairs, to Douglas Schmidt, lowest bidder and "intervenor" in the action below. ¹ Alleging that the Department had not complied with Maine's competitive bidding law, the plaintiff filed a petition for review under the Maine Administrative Procedure Act. In a judgment entered on February 15, 1980, the Superior Court, Knox County, dismissed the plaintiff's petition for want of timely filing. We affirm the judgment of the Superior Court.

Twice in the spring and summer of 1979, Maine's Department of Manpower Affairs requested sealed proposals for the rental of office space in Rockland, Maine. See 5 M.R.S.A. §§ 1741-49. With each request the Department made available to prospective bidders detailed specifications, reserving the right to reject all bids or to accept the bid believed to be in the State's best interests. The first request was advertised in May, 1979. The bid deadline was in June, and in early July all bidders, including the plaintiff, were notified that no bid had been accepted. Another request for bids was then advertised by the Department, the second bid deadline falling in August, 1979. Douglas Schmidt, three others and the plaintiff submitted timely proposals. The Department determined that only the Schmidt proposal fell within its budgetary constraints and, in letters of rejection dated September 13, it notified the plaintiff and the other three bidders that their bids were too high. Several weeks thereafter, in a letter dated October 3, the Department tentatively accepted Schmidt's bid, pending approval from a related regional office. Finally, on November 15, 1979, the Department wrote a letter to Schmidt that confirmed final approval of his bid and invited him to sign an accompanying lease contract, which he did. Forty-two days after November 15, on December 27, 1979, the plaintiff filed its petition for review, claiming that since neither the contract nor Schmidt's bid complied with the Department's specifications the whole purpose of a competitive bidding system was frustrated and the contract was, therefore, void.

The court below did not reach the merits of the plaintiff's claim; as stated, it dismissed the petition for want of timely filing. Essentially, two points are raised in this appeal: (1) the court erred in its interpretation of the applicable time limits of the Maine Administrative Procedure Act and (2) the motion to dismiss was improperly made and entertained.

I.

Before turning to the plaintiff's contentions, we must first resolve a threshold issue that was not addressed by either party. Does the Maine Administrative Procedure Act give the Superior Court, on petition of a disappointed bidder, authority to examine a state agency's actions in accepting a bid and awarding a contract pursuant to a competitive bidding system allegedly abused by the agency? We hold that it does.

Under the Maine APA, the Superior Court is granted jurisdiction to hear petitions for review filed by "any person who is aggrieved by final agency action...." 5 M.R.S.A. § 11001(1) (emphasis added). The only pertinent exception is where judicial review is specifically precluded by statute. Id. Maine's competitive bidding statute is silent as to the right of judicial review. 5 M.R.S.A. §§ 1741-49 (controlling contracts for public improvement); 5 M.R.S.A. §§ 1811-24 (controlling contracts for services, supplies, materials and equipment). Thus, the issue of whether the APA gives the Superior Court jurisdiction to hear this plaintiff's petition is reduced to the question of whether the state agency decision to award a contract after competitive bidding is "final agency action," subject to the limitations noted below.

The APA defines "final agency action" as "a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency." 5 M.R.S.A. § 8002(4). Despite the distinctly adjudicative flavor of the above definition, "final agency action" is not necessarily limited to strictly adjudicative decisions. The draftsmen of the Maine APA were guided by and borrowed from various provisions of the Model State Administrative Procedure Act. 14 Uniform Laws Annotated 371 (1980). See, e. g., Commentary to §§ 8055, 9059, Me.Leg.Doc. No. 1768, 108th Leg., 1st Sess. (1977). When the draftsmen framed the provision governing judicial review, however, they deliberately departed from the language of the Model Act. The Model Act confines jurisdiction to the review of a "final decision in a contested case." Model State Administrative Procedure Act, supra, at § 15. The Model Act's definition of "contested case," id. at § 1, is substantially similar to the Maine Act's definition of "adjudicatory proceeding," 5 M.R.S.A. § 8002(1), as opposed to the Maine Act's broader definition of "final agency action." 5 M.R.S.A. § 8002(4). Cf. Mass.Gen.Laws Ann. ch. 30-A, § 14 (West 1979) (confining judicial review to final decisions in an "adjudicatory proceeding"). Commenting upon the breadth thus conferred on the scope of judicial review under Maine's APA, the draftsmen stated: "The definition (of 'final agency action') is intended to make all agency decisions affecting one's legal rights, duties or privileges judicially reviewable, not just those made in licensing or adjudicatory proceedings." Commentary to § 8002(4), Me.Leg.Doc. No. 1768, 108th Leg., 1st Sess. (1977) (emphasis added).

Applying the definition of "final agency action" to the facts of the case before us, we note that the competitive bidding law does not expressly provide someone in the plaintiff's position with "further recourse, appeal or review ... within the agency." 5 M.R.S.A. § 8002(4). See 5 M.R.S.A §§ 1501-1824. Once the Department decided to award the lease contract to Schmidt, its decision in effect became "dispositive of all issues, legal and factual," id., § 8002(4). Schmidt's "rights" and "duties" were "affected" by the decision to award the contract; if, as the plaintiff alleged in its petition, the Department abused Maine's competitive bidding law in the process of making the award to Schmidt, then the plaintiff, as an unsuccessful bidder, was aggrieved by the decision. We conclude, therefore, that determining to confer the contract in this case fits the literal definition of "final agency action" in 5 M.R.S.A. § 8002(4).

The foregoing conclusion does not automatically result in the further conclusion that the action is subject to judicial review. The broad language of 5 M.R.S.A. § 8002(4) (defining final agency action) and 5 M.R.S.A. § 11001(1) (conferring jurisdiction on the Superior Court to review final agency action) must be read in light of the constitutional doctrine of separation of powers. See Me.Const. art. III. The Legislature may not constitutionally confer on the judiciary a commission to roam at large reviewing any and all final actions of the executive branch. Some executive action is by its very nature not subject to review by an exercise of judicial power. It is unnecessary here to define the precise limits of the judicial power granted in the constitution. See Me.Const. art. VI. It is sufficient to note that there are limits. As cases arise under the Administrative Procedure Act, we may have occasion to define the scope of the judicial power.

In the instant case, we have no difficulty in concluding judicial review is consistent with constitutional limitations because, through a variety of procedural techniques, courts have undertaken such review even without express statutory authority. See, e. g., Brown v. City of Phoenix, 77 Ariz. 368, 272 P.2d 358 (1954) (writ of mandamus); Quincy Ornamental Iron Works, Inc. v. Findlen, 353 Mass. 85, 228 N.E.2d 453 (1967) (bill for declaratory relief); J. Slotnik Co. v. Massachusetts Public Bldg. Commission, 328 Mass. 608, 619, 105 N.E.2d 476, 483 (1952) (writ of certiorari); see generally 10 E. McQuillan, Municipal Corporations § 29.83 (3d ed.1966). ²

II.

In maintaining that its petition for review was timely filed, the plaintiff charges that the Superior Court misapplied the law to the facts. The relevant provision of the APA, 5 M.R.S.A. § 11002(3), sets forth two distinct time limitations, one relating to a "party," the other to a "person aggrieved":

The petition for review shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought. Any other person aggrieved shall have 40 days from the date the decision was rendered to petition for review. Id. (emphasis added).

The Superior Court found that the November 15, 1979 letter to Schmidt confirming final approval of his bid was the final agency action of which the plaintiff complained. It went on to find that by virtue of the facts presented in affidavits the plaintiff was a "person aggrieved" by that action, not a "party" to it; that as a person aggrieved the plaintiff had forty days from November 15, the latest conceivable date on which the decision to contract...