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Bowers Office Products, Inc., v. North Star Borough School District (4/12/96), 918 P 2d 1012
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
BOWERS OFFICE PRODUCTS, INC., )
) Supreme Court Nos. S-6697/6747
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 4FA-89-1463 CI
)
FAIRBANKS NORTH STAR BOROUGH ) O P I N I O N
SCHOOL DISTRICT, )
)
Appellee/Cross-Appellant. ) [No. 4336 - April 12, 1996]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks,
Niesje Steinkruger, Judge.
Appearances: Jerry L. Bowers, pro se,
Fairbanks, James N. Reeves, Bogle & Gates,
Anchorage, for Appellant. Ann S. Brown,
Brad E. Ambarian, Lane Powell Spears
Lubersky, Fairbanks, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices, and
Carpeneti, Justice pro tem.*
COMPTON, Chief Justice.
I. INTRODUCTION
Bowers Office Products (Bowers) appeals the superior
court's grant of summary judgment in favor of the Fairbanks North
Star Borough School District (School District). The superior
court ruled that summary judgment was appropriate because all of
Bowers' claims of impropriety regarding the School District's
award of a copier service contract were raised and resolved in
the first appeal of this case, Fairbanks North Star Borough Sch.
Dist. v. Bowers Office Products, 851 P.2d 56 (Alaska 1993)
(Bowers I).
Bowers also appeals the superior court's award of
attorney's fees to the School District for work performed prior
to the first appeal. The School District cross-appeals the
court's denial of attorney's fees for work performed on remand.
We affirm the superior court's judgment and the court's
denial of attorney's fees for work performed on remand. We
vacate the court's award of attorney's fees to the School
District for work performed prior to the first appeal, and remand
for a redetermination of these fees.
II. FACTS AND PROCEEDINGS
The facts of this case are detailed in Bowers I.
Briefly stated, Bowers sued the School District after it rejected
Bowers' bid for a copier service contract. Id. at 56. In the
original proceeding, the superior court granted summary judgment
in Bowers' favor, concluding that the bids the School District
accepted were non-responsive to the requirements listed in the
advertised bid request, and that therefore the School District
"failed to meet its implied obligation for an honest and fair
consideration of all proposals." Id. at 57.
Following its grant of summary judgment, the superior
court ordered a trial to determine the appropriate remedy.
Bowers I, 851 P.2d at 57. In the course of the five day trial,
Bowers was allowed to submit evidence on "additional
irregularities"which it claimed tainted the bid process. In its
oral ruling after trial, the superior court stated that these
"additional irregularities"were further evidence that the School
District failed to fairly and honestly consider Bowers' proposal.
Id.
In Bowers I, we reversed the superior court's grant of
summary judgment, concluding that the allegedly non-responsive
bids presented merely "technical flaws." Id. at 60. After
reviewing the evidence, we held that the School District's
conduct toward Bowers was not "arbitrary and capricious," and
that "the school district did not breach its implied duty to
fairly and honestly consider Bowers' proposal." Id. at 60-61.
Bowers argued that the alleged "additional irregularities"
constituted independent grounds for affirming the court's ruling
on summary judgment. We addressed these "additional
irregularities"and found them to be without merit. Id. at 59-61
and n.5. We remanded for "such additional proceedings as are
warranted by the bid protest, evidence, proceedings previously
undertaken and resolved by the superior court, and issues
remaining to be resolved by the superior court, if any." Id. at
61.
On remand, the superior court granted summary judgment
in the School District's favor after concluding that "all of the
issues presented by Bowers . . . on remand were considered by
this court in the prior proceedings and were available for review
by the Supreme Court in the appellate proceeding." The superior
court awarded the School District attorney's fees for work
performed prior to the first appeal, but denied its request for
attorney's fees for work performed on remand.
III. DISCUSSION
A. The Merits
As we have previously stated:
The doctrine of law of the case prohibits the
reconsideration of issues which have been
adjudicated in a previous appeal in the same
case. Even issues not explicitly discussed
in the first appellate opinion, but directly
involved with or "necessarily inhering" in
the decision will be considered the law of
the case.
Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977)
(citations and footnotes omitted). We think that this language
is directly applicable to the case at hand, and that it requires
us to uphold the superior court's decision.
Bowers puts forward what it terms "two closely-related
legal issues" as the "remaining issues" left unresolved by
Bowers I. The first issue is "whether the School District's
actions violated its published policy to 'purchase competitively,
without prejudice' among competing vendors." The superior court
dealt with this issue in its oral ruling after the trial in the
original proceeding. In that oral ruling, the court stated:
The School District policy requires the
process to be competitive without prejudice.
. . . [W]hen the court considers the total
irregularities . . . the determination is
that it was not a competitive process. In
other words, having now heard the facts, the
Court finds that the School District violated
its own policy requiring competitiveness.
In Bowers I we considered the irregularities relied on by the
superior court, but concluded that "these 'irregularities' did
not amount to a breach of the school district's promise to
honestly and fairly evaluate the proposals." Bowers I, 851 P.2d
at 61 n.5.
The second "closely-related issue"which Bowers claims
has yet to be decided is "whether the School District's decision
and actions in awarding the disputed contracts was arbitrary and
capricious and therefore illegal." In support of this argument,
Bowers first asserts that the "comparative evaluation erroneously
identified features not previously identified"in the Request for
Proposal (RFP). The specific copier features discussed by Bowers
are (1) a dedicated electrical circuit requirement; (2) complete
automatic job recovery; and (3) sorter bin/offset catch tray.
Bowers' claims surrounding each of these copier features were put
into evidence at the trial in the original proceeding, and were
expressly mentioned by the superior court in its oral ruling
after trial. In Bowers I, we addressed this issue and resolved
it against Bowers:
The [superior] court did find an
"irregularity" in that the [evaluation]
committee considered some copier features
which the court did not feel were expressly
identified in the RFP. However, we conclude
that the RFP implicitly put these features in
issue. Therefore, the committee was
justified in its consideration of these
features.
Bowers I, 851 P.2d at 59-60 n.3.
Bowers' second assertion in support of its "arbitrary
and capricious" argument is that the School District "made
serious factual errors in attempting to determine whether or not
individual copiers possessed specific desired features." The two
features identified by Bowers as relating to this issue are (1)
the dedicated electrical circuit requirement; and (2) the heavy-
duty console requirement. Testimony on the electrical circuit
feature was introduced at trial in the original proceeding, and
the superior court specifically cited the electrical circuit
requirement to support its oral ruling after trial. We resolved
this issue against Bowers in Bowers I. Id.
Bowers also introduced evidence on the heavy-duty
console requirement during the trial in the original proceeding.
The superior court did not expressly reference this issue in its
oral ruling after trial. However, an examination of the context
in which testimony on the heavy-duty console feature was
introduced shows that such testimony was part of the overall
question of whether Bowers' equipment satisfied the RFP
requirements. There is evidence in the record to support the
superior court's finding on remand that the testimony on the
heavy-duty console requirement was one of the "'irregularities,'
mistakes, and other actions by the School District which [were]
deemed to cumulatively establish that the School District acted
in an arbitrary and capricious manner." As discussed above, in
Bowers I we rejected Bowers' "additional irregularities"
argument. Id. at 59-61 and n.5. Although we did not expressly
mention the heavy-duty console requirement, the issue was one
that was "necessarily inhering"in our decision.1 Arctic Bowl,
560 P.2d at 763.
Finally, Bowers argues that the "individual and
cumulative effect"of these allegedly arbitrary and capricious
actions by the School District "determined the outcome of the
procurement process and subverted any alleged competition among
the competing vendors." Bowers supports its argument by listing
the factors for determining arbitrary and capricious behavior set
out in Keco Industries, Inc. v. United States, 492 F.2d 1200,
1203-04 (Ct. Cl. 1974), and discussing the evidence in light of
these factors. However, we applied the Keco factors to this case
in Bowers I, and, based on this application, concluded that the
School District's decision was not arbitrary and capricious.
Bowers I, 851 P.2d at 59-61.
In Bowers I we remanded so that the superior court
could decide in the first instance whether its ruling following
trial effectively adjudicated all of Bowers' claims. Id. at 61.
After reviewing the evidence presented by Bowers in the original
proceeding and on remand, the superior court concluded that there
were no issues left to be resolved:
Bowers mistakenly asserts that the only issue
before the trial court in the prior
proceeding was whether the proposals were
"non-responsive." Neither the record, nor
the courts' rulings, bears this out. Bowers
is using the word "responsive" in a
restrictive sense. After hearing and
reviewing all the evidence, this court
considered all of Bowers' arguments relating
to responsiveness, irregularities in the
bidding process, favoritism, bad faith,
materialness, arbitrary and capricious
actions, competitiveness, and illegalities.
Many of these terms overlap and interact with
each other when a court or other entity
reviews a bid process. However, it is clear
from the record that the court went far
beyond "responsiveness"in the narrow sense
in reviewing the actions of the School
District in this matter.
We agree with the superior court's conclusion. After careful
review, we are satisfied that all of Bowers' claims of
impropriety were raised and resolved in the first appeal. The
superior court's grant of summary judgment is affirmed.
B. Attorney's Fees
1. Attorney's fees for the original proceeding.
On remand, the School District requested attorney's
fees of $150,423.50 for work performed prior to the first appeal.
The superior court awarded the School District $60,000 in
attorney's fees, or approximately forty percent of its total
claimed expenditures prior to the first appeal. The court based
its award on what it considered to be "the reasonable fees for a
case of this nature." Bowers argues that this award was in
error.
As a threshold matter, we consider the application of
Civil Rule 82 appropriate. In the normal course, attorney's fees
awards in administrative appeals to the superior court are
governed by Alaska Appellate Rule 508. See Diedrich v. City of
Ketchikan, 805 P.2d 362, 371 (Alaska 1991). This case, however,
is a hybrid in that it was an administrative appeal with an
augmented record. Bowers I, 851 P.2d at 57. Thus it partook of
both administrative review and de novo litigation. The superior
court based its attorney's fees award on Civil Rule 82 and, in
context, this was not erroneous.
Once it decided to apply Rule 82, however, the superior
court was required to apply the current rule, since the current
rule was in effect when the award was made. Rule 82 now provides
that a prevailing party who recovers no money judgment in a case
without trial shall be awarded twenty percent of its "actual
attorney's fees which were necessarily incurred." Alaska R. Civ.
P. 82(b)(2).2 A court may vary this amount, but if it does so it
must explain its reasons with reference to the factors listed in
Rule 82(b)(3). Id. at (b)(3).
In Nielson v. Benton, 903 P.2d 1049, 1054-55 (Alaska
1995), we held that the current rule applied to a case pending
when the current rule took effect, since there had been no
showing that such an application would not be "just and
practicable." Id.; see Alaska R. Civ. P. 98 (Civil rules govern
proceedings pending at the time of their effective date "so far
as just and practicable."). The amendments to Rule 82 relevant
to this case took effect on July 15, 1993. See Alaska Supreme
Court Order No. 1118 (January 7, 1993). The superior court
entered its order awarding attorney's fees to the School District
on August 26, 1993. As there is nothing to suggest that
application of current Rule 82 would not be "just and
practicable," the superior court should have applied it. We
vacate the award and remand for a redetermination in accordance
with current Rule 82.
2. Attorney's fees for work performed on remand.
The superior court denied the School District's request
for attorney's fees for work performed on remand. The superior
court clearly and appropriately applied current Rule 82 in
denying the School District's fee request for work performed on
remand. The court explained its reasons, and denied the award
pursuant to Civil Rule 82(b)(3)(F) and (K).3 The court concluded
that "the services provided [by the School District] were not
reasonable in relationship to the issues that were before the
court for decision."
The School District complains that the superior court's
denial of attorney's fees "makes no sense"because the superior
court eventually adopted the School District's position that all
of the issues raised by Bowers on remand had already been raised
and addressed in the first appeal. Although the superior court
ultimately entered summary judgment in the School District's
favor, the record supports the court's finding that the School
District did little to assist the superior court in reaching its
decision. Its memorandum in support of its cross-motion for
summary judgment essentially ignores the question clearly
presented in the superior court's post-remand briefing
instructions (i.e., what issues "if any"remain on remand). It
is apparent, as the superior court found, that "[t]he hard work
of going through the record and determining what, if any, of the
issues raised by Bowers on remand has not been addressed by the
court in the proceedings was either never done or never provided
to the court on remand by the School District."
The superior court may deny a prevailing party
reasonable attorney's fees. Hansen v. Stroecker, 699 P.2d 871,
875 (Alaska 1985). We will affirm a denial of attorney's fees to
the prevailing party as long as the denial is not "arbitrary or
capricious or for some improper motive." Cooper v. Carlson, 511
P.2d 1305, 1310 (Alaska 1973). In the present case, the
superior court's denial of attorney's fees to the School District
for work performed on remand was not arbitrary or capricious, nor
can we discern any improper motive for such denial from the
record before us. We affirm the superior court's denial of
attorney's fees to the School District for work performed on
remand.
IV. CONCLUSION
The superior court's grant of summary judgment is
AFFIRMED. The superior court's award of attorney's fees to the
School District for work performed prior to the first appeal is
VACATED, and the issue REMANDED to the superior court for
redetermination in accordance with current Rule 82. The superior
court's denial of the School District's request for attorney's
fees on remand is AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 The same can be said for Bowers' arguments that the
School District's assignment of various weights to different
"desired features"was arbitrary and capricious, and that the
School District's "z-score"procedure used to rank copiers was
defective. There was testimony on both of these claims at the
trial in the original proceeding, and the superior court
expressly referenced them in its oral ruling after trial as being
two of the "additional irregularities"which supported its ruling
that the School District's actions were arbitrary and capricious.
2 Under former Rule 82, where a prevailing party
recovered no money judgment the superior court could award
attorney's fees "in a reasonable amount." Former Alaska R. Civ.
P. 82 (1992).
3 Civil Rule 82(b)(3) provides in part:
The court may vary an attorney's fee award
calculated under subparagraph (b)(1) or (2)
of this rule if, upon consideration of the
factors listed below, the court determines a
variation is warranted:
. . . .
(F) the reasonableness of the claims and
defenses pursued by each side;
. . . .
(K) other equitable factors deemed relevant.
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