NIHI LEWA v. DEPARTMENT OF BUDGET SERVICES

• Decision Date: 12 December 2003
• Docket Number: No. 23047.,23047.
• Parties: NIHI LEWA, INC., Petitioner-Appellant, v. DEPARTMENT OF BUDGET AND FISCAL SERVICES, City and County of Honolulu, Respondent-Appellee.
• Court: Hawaii Supreme Court

80 P.3d 984

103 Haw. 163

NIHI LEWA, INC., Petitioner-Appellant, v. DEPARTMENT OF BUDGET AND FISCAL SERVICES, City and County of Honolulu, Respondent-Appellee.

No. 23047.

Supreme Court of Hawai`i.

December 12, 2003.

David F. E. Banks and Marc E. Rousseau (of Cades Schutte Fleming & Wright), on the briefs, Honolulu, for petitioner-appellant.

Cynthia M. Nojima, Deputy Corporation Counsel, on the briefs, Honolulu, for respondent-appellee.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ., and Circuit Judge BLONDIN, Assigned by Reason of Vacancy.

Opinion of the Court by MOON, C.J.

Petitioner-appellant Nihi Lewa, Inc. (Nihi Lewa) seeks judicial review of the December 17, 1999 dismissal order of the Office of Administrative Hearings, Department of Commerce and Consumer Affairs, which denied Nihi Lewa's request for administrative review. Nihi Lewa contends that the hearings officer erred in (1) dismissing its request for review as untimely under Hawai'i Revised Statutes (HRS) § 103D-712(a) (Supp.1999)¹ and (2) finding that it lacked jurisdiction over the matter because Nihi Lewa had failed to file its request directly with the Office of Administrative Hearings (hearings office). For the reasons discussed below, we affirm the order of dismissal.

I. BACKGROUND

Respondent-appellee Department of Budget and Fiscal Services, City and County of Honolulu (the purchasing agency) apparently advertised job number 11-99, contract number F-96730, Waipahu Wastewater Pump Station Modifications (the contract) for public bid. On October 28, 1999, the sealed bids submitted for the contract were opened. RCI Environmental, Inc. (RCI) submitted the lowest "basic bid" at $5,027,645.50. Nihi Lewa submitted the second lowest "basic bid" at $5,364,835.00.

On November 2, 1999, Nihi Lewa filed a protest with Roy K. Amemiya, Jr., the director of the purchasing agency (director). Therein, Nihi Lewa complained that the value of RCI's plumbing work was greater than one percent of its total bid and that, therefore, RCI was required to list a "C-37 licensed plumber." Because RCI failed to list such a plumber, Nihi Lewa asserted that RCI's bid should have been rejected. Cf. Okada Trucking Co., Ltd. v. Board of Water Supply, 97 Hawai'i 450, 460-62, 40 P.3d 73, 83-85 (2002)

(explaining that, pursuant to HRS § 444-9 (1993), a general contractor may not perform specialty plumbing work without a proper license).

In a letter, dated November 23, 1999, the director denied Nihi Lewa's protest. The letter was sent via certified mail, return receipt requested, and the envelope was postmarked November 29, 1999. Nihi Lewa's president signed for and received the denial letter on December 2, 1999.

On December 3, 1999, Nihi Lewa hand-delivered a request for an administrative hearing (the request) to the purchasing agency's director. By letter dated December 6, 1999, the purchasing agency transmitted the request to the hearings office, which was received on December 8, 1999. A pre-hearing conference was scheduled for December 17, 1999, and the hearing was scheduled for December 21, 1999.

Approximately forty-five minutes before the pre-hearing conference was scheduled to commence, the hearings officer dismissed Nihi Lewa's request for administrative review on two grounds. First, the hearings officer determined that the request had been sent to the incorrect office:

[The] mandatory language in the statute is clear as to the time, place, and manner of filing requests for administrative review—such as that attempted by [Nihi Lewa]. The record, however, is equally clear that [Nihi Lewa] has not complied with the requirement that such requests "shall be made directly to the office of administrative hearings[.]"

(Emphasis in original.) Second, he concluded that the appeal was untimely:

[T]he request was not made within the seven calendar days required by that statute [(HRS § 103D-712(a))]. The record reflects that the [purchasing agency] issued its decision denying [Nihi Lewa's] protest on November 23, 1999, and yet the... request was not made until 10 days later on December 3, 1999. Once again, the statute is clear in requiring that such requests be made "within seven calendar days of the issuance of a written determination" rather than specifying either the date of mailing or date of receipt to be the time from which the seven calendar days begins to run.

(Underscored emphasis in original.) (Bold emphasis added.) (Citations omitted.)

On December 21, 1999, Nihi Lewa filed a motion to set aside the dismissal and requested a new hearing. By letter dated December 23, 1999, the hearings officer denied the motion on the ground that the hearings office lacked jurisdiction over the matter, stating: "it is questionable whether this forum now has jurisdiction to hear your current motion in a case that has already been dismissed." (Emphasis in original.) On December 23, 1999, Nihi Lewa filed an application for judicial review with this court.

It is undisputed that the contract was eventually awarded to RCI.

II. STANDARD OF REVIEW

When reviewing decisions of an administrative hearings officer based upon Hawai`i's Public Procurement Code, the appellate standard of review is governed by HRS § 103D-710(e) (1993). HRS § 103D-710(e) provides:

Upon review of the record the court may affirm the decision of the hearings officer issued pursuant to section 103D-709 or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if substantial rights may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the chief procurement officer or head of the purchasing agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Furthermore,

conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and the Hearings Officer's exercise of discretion under subsection (6). Accordingly, a reviewing court will reverse a Hearings Officer's finding of fact if it concludes that such ... finding is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. On the other hand, the Hearings Officer's conclusions of law are freely reviewable.

Southern Foods Group, L.P. v. State, 89 Hawai'i 443, 452, 974 P.2d 1033, 1042 (1999) (brackets and citations omitted).

III. DISCUSSION

HRS § 103D-712(a) provides that "[r]equests for administrative review under section 103D-709 shall be made directly to the office of administrative hearings of the department of commerce and consumer affairs within seven calendar days of the issuance of a written determination under section 103D-310, 103D-701, or 103D-702." (Emphases added.) Nihi Lewa contends that "the `issuance' date of the agency's decision intended by the Legislature [is] the date of receipt." (Emphasis added.) The purchasing agency asserts that the date of "issuance" should be construed as meaning, at the latest, the date on which the decision was mailed.² We agree with the purchasing agency.

Generally, this court is required to construe the words of a statute according to "their most known and usual signification[.]" HRS § 1-14 (1993). A standard dictionary definition of the term "issuance" notes that the term refers to "the act of issuing." The Random House College Dictionary 710 (rev'd ed.1975). In turn, the primary definition of "issue" is "the act of sending out or putting forth; promulgation; distribution." Id. This general definition of the relevant term also comports with the meaning of the term as it is technically used in the law. See Black's Law Dictionary 830 (6th ed. 1990) (Giving as its first definition: "To send forth; to emit; to promulgate; as, an officer issues orders, process issues from a court.").

HRS § 103D-712(a) establishes the "date of issuance" as the triggering mechanism that starts the clock running on the time for filing a request for administrative review. However, in the absence of a precise definition, it is unclear as to when the written determination should be considered to have been "sent forth, promulgated or distributed." The date of issuance could reasonably be understood to mean the date on which the written determination is finalized and adopted, the date on which it is rendered public, or the date on which it is mailed to the affected parties. Given this ambiguity, it is appropriate to resort to extrinsic aids in order to ascertain and give effect to the intention of the Legislature. This does not mean, however, that, in construing a disputed term, we should lightly disregard the ordinary meaning that attaches to it. See Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997)

("Words are given their common meaning unless some wording in the statute `requires a different interpretation.'" (quoting Saranillio v. Silva, 78 Hawai'i 1, 10, 889 P.2d 685, 694 (1995)) (citing Ross v. Stouffer Hotel Co. (Hawai'i), Ltd., 76 Hawai'i 454, 461, 879 P.2d 1037, 1044-45 (1994)) (emphasis added)). Nor can we, under the guise of applying standard rules of statutory construction, thwart the intent of the Legislature.

It is well-settled that, when faced with the task of interpreting ambiguous statutory language, this court should "accord persuasive weight to the construction given words of broad and indefinite meaning by the agency charged with the responsibility of carrying out the mandate of the statute in question, unless the construction is palpably erroneous." Aio v. Hamada, 66 Haw. 401, 410, 664 P.2d 727, 733 (1983...