Rochester City Lines Co. v. City of Rochester, A16-1515

• Decision Date: 15 October 2018
• Docket Number: A16-1515
• Parties: Rochester City Lines Co., Relator, v. City of Rochester, et al. Respondents, First Transit, Inc., Respondent.
• Court: Court of Appeals of Minnesota

Rochester City Lines Co., Relator,
v.
City of Rochester, et al. Respondents,
First Transit, Inc., Respondent.

A16-1515

STATE OF MINNESOTA IN COURT OF APPEALS

October 15, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed
Schellhas, Judge

City of Rochester

James A. Godwin, Rick A. Dold, David L. Liebow, Godwin Dold, Rochester, Minnesota; and

Gary A. Van Cleve, Rob A. Stefonowicz, Bryan J. Huntington, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota; and

Steven A. Diaz (pro hac vice), Law Office of Steven A. Diaz, Washington, D.C. (for relator)

John M. Baker, Monte A. Mills, Katherine M. Swenson, Greene Espel PLLP, Minneapolis, Minnesota (for respondents City of Rochester and Justin L. Templin)

Charles K. Maier, Richard C. Landon, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, Minnesota (for respondent First Transit, Inc.)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bratvold, Judge.

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UNPUBLISHED OPINION

SCHELLHAS, Judge

On remand of a moderator's denial of relator bus company's pre-bid protest issues in a competitive-bidding process, the supreme court directs this court to address whether respondent city (1) unfairly deprived relator of references and the ability to effectively compete, (2) unfairly deprived relator of the full benefit of its prior performance as respondent's bus company, (3) acted unfairly as to the competition regarding the bus company that was awarded the contract, and (4) unfairly deprived relator, a small business, of an opportunity. Because we see no basis to overturn the moderator's decision for respondents on any of these issues, we affirm.

FACTS

Relator Rochester City Lines Co. (RCL) began providing bus service to respondent City of Rochester (Rochester) in about 1966. In 2011, Rochester learned that it must conduct a competitive-bidding process for its bus-service contract. Rochester duly issued a request for proposals (the 2012 RFP); relator was among the proposers. A committee (the 2012 committee) evaluated the proposals, and Rochester awarded the 2012 contract to respondent First Transit, Inc. (FT), which began operating in Rochester.

RCL sued respondents, and the district court granted summary judgment to respondents. Relator appealed, and this court affirmed. Rochester City Lines, Co. v. City of Rochester, 846 N.W.2d 444 (Minn. App. 2014) (RCL). The supreme court reversed the affirmance of one issue and remanded that issue to the district court for trial. Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655 (Minn. 2015), cert. denied, 136 S.

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Ct. 849 (2016) (RCL I). Following trial, the district court granted judgment to respondents, and this court affirmed. Rochester City Lines, Co. v. City of Rochester, No. A17-1944 (Minn. App. Aug. 6, 2018) (RCL IV).

In 2016, Rochester issued an RFP for 2017-2021 bus service (the 2016 RFP). The 2016 RFP provided a process whereby proposers could submit pre-bid protests that a moderator of the RFP process would decide. FT and RCL were among the proposers, and RCL challenged the 2016 RFP with a pre-bid protest. The moderator denied the protest, and Rochester awarded the 2016 contract to FT. RCL sought certiorari review of the moderator's denial of its protest.¹ This court reversed the denial on one issue and declined to consider the other issues raised in RCL's protest. Rochester City Lines, Co. v. City of Rochester, 897 N.W.2d 792, 800 (Minn. App. 2017) (RCL II). The supreme court reversed and remanded to this court for consideration of RCL's remaining issues. Rochester City Lines, Co. v. City of Rochester, 913 N.W.2d 443, 449 (Minn. 2018) (RCL III).²

The remaining issues are:

(1) that [Rochester] unfairly deprived RCL of references and the ability to effectively compete; (2) that [Rochester] unfairly deprived RCL of the full benefit of its prior performance; (3) that [Rochester] acted unfairly as to the competition regarding [FT]; and (4) that [Rochester] unfairly denied opportunities for small business.

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Id. at 448. "On remand, [this] court must execute [the supreme] court's mandate strictly according to its terms and lacks power to alter, amend, or modify that mandate." Johnson v. Princeton Pub. Utils. Comm'n, 899 N.W.2d 860, 868 (Minn. App. 2017) (quotation omitted). The supreme court selected the above four issues from the six issues listed under "argument" in the table of contents to RCL's principal brief for RCL II. The supreme court omitted two issues: whether "[t]he [c]omposition of the [2016] [v]aluation [c]ommittee is [u]nfair," and whether "[t]he [m]oderator [s]hould [b]e [o]rdered to take [a]ppropriate [a]ctions." We infer from this omission that the supreme court has not instructed this court to address the omitted issues on remand.³

DECISION

"We review the Moderator's resolution of RCL's bid protest under a limited and nonintrusive standard because it is a quasi-judicial decision. We cannot substitute our own findings of fact, and we do not review conflicting evidence de novo." RCL III, 913 N.W.2d at 447 (quotation and citation omitted).

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1. Did Rochester unfairly deprive RCL of references and the ability to effectively compete?

RCL argues on remand, as it argued to the moderator in its pre-bid protest, that Rochester unfairly deprived it of references by stating that members of the 2016 evaluation committee could not be used as references. The moderator noted that the 2016 evaluation committee was composed of Rochester staff members who were in daily contact with the operator of the transit service and of outsiders who had experience in transit operation and maintenance. He continued:

[Rochester] has further concluded that allowing those individual members of the [2016 evaluation committee] to first serve as references and then evaluate the quality of those same references could unfairly prejudice the evaluations. In [Rochester's] judgment, the better process is to seek and obtain outside

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