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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lakloey, Inc. v. University of Alaska (05/18/2007) sp-6124
Notice: This opinion is subject to 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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| LAKLOEY, INC., | ) |
| ) Supreme Court No. S- 11950 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-04-01172 CI |
| ) | |
| UNIVERSITY OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6124 - May 18, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Raymond M. Funk, Judge pro tem.
Appearances: John J. Connors, Law Office of
John J. Connors, P.C., Fairbanks, for
Appellant. Aimee Anderson Oravec, Law Office
of Aimee A. Oravec, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Lakloey, Inc. appeals a decision of the superior court
affirming the University of Alaska Fairbankss denial of Lakloeys
protest of a University procurement award. Because we agree with
Lakloey that it: (1) has sufficient standing as an interested
party, and (2) has raised an issue of fact requiring a hearing,
we reverse the decision of the superior court and remand this
case to the University.
II. FACTS AND PROCEEDINGS
A. Facts
On April 18, 2003, the University of Alaska Fairbanks
(UAF) published an Information for Bid, (IFB) soliciting bids for
a one-time purchase of a Continuous Deionization LX System
(deionization system). The IFB indicated that UAF sought a
specific brand name model or equal.1 It explained that a non-
brand name model would be considered equal to the specific brand
name model only when in the opinion of the procurement officer, .
. . [it] fulfill[ed] the salient characteristics set forth in the
purchase description, and UAF [could] reasonably anticipate
sufficiently similar quality, capacity, durability, performance,
utility and productivity. The IFB then went on to describe
twelve technical and formal specifications that a non-brand name
model would need to meet in order to be deemed equal to the brand
name model. Bids were scheduled to be opened on May 9, 2003.
On May 1, 2003, Lakloey, Inc., a potential bidder,
submitted a written request to UAF for additional information
about the desired technical specifications of the deionization
system. The next day, UAF responded to Lakloeys request with
Amendment No. 1. This amendment provided a number of
clarifications to the original IFB, including information about
the quality of water that would be going into the deionization
system, the desired flow rate of the system, and the desired
quality of the finished water coming out of the system. The
amendment also rescheduled the bid opening date to May 13, 2003.
All bidders were required to acknowledge the amendments
clarifications prior to this new bid opening date.2
UAF received its first bid on May 7, 2003. Over the
next week, UAF received five more bids, including one from
Lakloey. On May 13 all six of these bids were opened, and it was
determined that Delta Industrial appeared to have submitted the
lowest bid. Because Delta Industrials bid was not for the brand
name model specified in the IFB, UAF requested and conducted an
internal evaluation of the bid and offered model. On May 15 UAF
determined that the model bid by Delta Industrial did not meet
four of the twelve specifications required by the IFB and
consequently concluded that the bid was technically unacceptable
and non-responsive. This conclusion left U.S. Filter as the low
bidder, Frontier Plumbing Supply as the second lowest, and
Lakloey as the third lowest.
Although U.S. Filter, the lowest bidder, had placed a
bid for the brand name model specified in the original IFB, it
had failed to acknowledge Amendment No. 1 prior to the bid
opening date. On May 20 UAF contacted U.S. Filter and asked it
to verify that [its] bid was submitted with the intention[] of
complying solely with the terms and conditions listed within the
IFB. On May 23 U.S. Filter verified that its bid was indeed
submitted solely in compliance with [these] terms and conditions.
That same day, UAF drafted a Memorandum of Selection, indicating
that the Delta Industrial bid was non-responsive and recommending
that the contract be awarded to U.S. Filter. Four days later, on
May 27, UAF issued a Notice of Intent to Award the contract to
U.S. Filter.
B. Proceedings
On May 30, 2003, Lakloey mailed UAF a written protest
of the Universitys intent to award the contract to U.S. Filter.3
This protest was brief. It stated:
This is a protest of the Notice of Intent to
Award of the referenced solicitation (IFB No.
03B0018DH).
According to the information provided by your
office, the bid of U.S. Filter Corp was
clearly non-responsive. In their bid they
did not acknowledge Amendment #1.
Amendment #1 was a material change in both
the contract conditions of quality and
quantity.
On June 2 UAF issued a letter notifying all interested parties
that it had received a protest of its intent to award the
contract to U.S. Filter and that the protest had been received
within the prescribed ten-day notice period.4 Four days later,
on June 6, the Director of Purchasing for UAF denied Lakloeys
protest. Although the Director admitted that Lakloey was an
interested party with standing to protest the award, he found
Lakloeys protest to be without merit.
On June 9, 2003, Lakloey sent a second letter to UAF
entitled Appeal of Denial of Protest. This second letter was
much longer than Lakloeys initial protest and raised a host of
detailed arguments. Among these arguments was a reiteration of
Lakloeys initial assertion that Amendment No. 1 was a material
change to the IFB that established objective performance
standards [that] became obligatory to all bidders upon its
issuance. On June 17 the Chief Procurement Officer of UAF
acknowledged receipt of Lakloeys second letter and stated that he
had asked the Director of Purchasing to complete a protest
report. He also noted that he intended to hire Roger Brunner as
his advisor and that Brunner would also serve as hearing officer
if a hearing [became] necessary.
On June 27, 2003, the Director of Purchasing filed the
requested protest report. In this report, UAF reversed itself on
the issue of Lakloeys standing. The report reasoned that Lakloey
did not in fact have standing because, as the third lowest
bidder, Lakloey would not receive the contract even if it were
withdrawn from U.S. Filter and therefore did not have a direct
economic interest in the outcome of its protest. The report then
went on to conclude that, even if Lakloey did have standing, its
protest would still fail because: (1) Lakloeys initial letter
did not request a specific form of relief as required by statute,5
and (2) Lakloeys initial letter did not establish that Amendment
No. 1 was a material change that U.S. Filter was required to
acknowledge.6 The protest report also described Lakloeys second
letter to UAF as an appeal and deemed a number of arguments
raised for the first time in this letter to have been waived.
On June 30, 2003, the Chief Procurement Officer wrote
to Lakloey and notified it that it had ten days in which to
respond to the protest report. In a letter dated July 5, Lakloey
responded to the protest report. In this response, Lakloey
disputed the protest reports assertion that it was not an
interested party, argued that its second letter was not an appeal
but a detailed explanation of the basis of its initial protest,
and reiterated its argument that Amendment No. 1 was a material
change to the IFB. On July 14 UAF issued a rebuttal to Lakloeys
response to the protest report. On July 22 the Chief Procurement
Officer sent a letter to Lakloey, formally accepting Lakloeys
appeal and confirming that Brunner had been engaged to serve as
the [Chief Procurement Officers] advisor for this matter and as
hearing officer if a hearing is conducted.
On September 8, 2003, Brunner the Chief Procurement
Officers advisor as well as hearing officer sent a letter to
Lakloey that concluded there are no contested issues of material
fact and therefore . . . a hearing is not required. Enclosed
with this letter was a proposed draft decision denying Lakloeys
appeal for essentially the same reasons outlined in the protest
report. The hearing officer stated that he would delay
submitting this draft decision to the Chief Procurement Officer
until September 17 to allow Lakloey and UAF a chance to comment
upon or object to the decision.
On September 13, 2003, Lakloey responded and maintained
that there were contested issues of material fact and that
Lakloey was therefore entitled to an administrative hearing. In
response, on October 23, the hearing officer wrote to Lakloey and
UAF to set up a status hearing, the purpose of which was to
discuss in more detail the issues of material fact which Lakloey
claims exist[], and what evidence Lakloey would expect to present
on those issues if a hearing were held. This status hearing
eventually took place on November 14. At the close of the
hearing, the hearing officer articulated that he had not yet
decided whether a full hearing was appropriate.
On December 19, 2003, the hearing officer wrote to UAF
and Lakloey to request briefing solely on the issue of the
timeliness of Lakloeys two protest letters and whether its second
letter was an appeal.7 According to this letter, the hearing
officer would not . . . get into the issues of whether the water
quality being fed to the machine was as stated or whether the
brand name performs as stated. On December 24 Lakloey wrote a
letter to the hearing officer indicating that it still wanted an
administrative hearing on the other issues of fact. On December
30 Lakloey submitted its brief and materials on the issue of
timeliness. In its brief, Lakloey argued that its second letter
was not an appeal but a detailed document to support the protest.
On January 16, 2004, UAF submitted its brief and materials. The
hearing officer held a hearing on the issue of timeliness on
April 14, 2004.
About a week after the hearing on the issue of
timeliness, the hearing officer issued a second proposed
decision. In this decision, the hearing officer found that
Lakloeys second, more detailed protest letter was an appeal and
any issues presented for the first time in that letter were
therefore waived as untimely. The decision then went on to
explain that this waiver left Lakloey with only one contested
issue: whether U.S. Filters bid is non-responsive because it
failed to acknowledge Amendment No. 1. The decision reasoned
that UAF has the discretion to overlook minor informalities when
an amendment is immaterial, with only [a] negligible effect on
price, quantity, quality or delivery. It then concluded that
Amendment No. 1 was immaterial and that UAF properly overlooked
U.S. Filters failure to acknowledge it. The decision also
reiterated that Lakloey did not have standing to file a protest
and that no hearing was necessary because there were no disputed
issues of material fact. The decision rejected the contention
that Lakloeys original protest was void for failure to request a
form of relief. On April 28, 2004, the Chief Procurement Officer
formally adopted this proposed decision in its entirety.
On May 27, 2004, Lakloey appealed to the superior
court. On April 22, 2005, the superior court issued a memorandum
decision on appeal in which it held that Lakloey was not an
interested party eligible to protest the bid and, even if it is
an interested party, Lakloeys rights were not violated.
Lakloey now appeals.
III. STANDARD OF REVIEW
When the superior court is acting as an intermediate
court of appeal in an administrative matter, we independently
review the merits of an administrative boards decisions.8 When
reviewing the merits of an agencys decision, we apply one of four
different standards of review: (1) the substantial evidence test
applies to questions of fact; (2) the reasonable basis test
applies to questions of law involving agency expertise; (3) the
substitution of judgment test applies to questions of law where
no expertise is involved; and (4) the reasonable and not
arbitrary test applies to questions about agency regulations and
the agencys interpretation of those regulations.9
IV. DISCUSSION
Lakloey raises four primary issues on appeal: (1)
whether Lakloey is an interested party with standing to protest
the contract award; (2) whether Amendment No. 1 was a material
amendment to the IFB; (3) whether Lakloey is entitled to an
administrative hearing; and (4) whether Lakloey is entitled to
its bid preparation costs.
A. Lakloey Has Standing as an Interested Party.
Alaskas general procurement code codified at
AS 36.30.005.995 transfers purchasing authority to the Regents
of the University of Alaska and requires the Regents to adopt
purchasing regulations.10 This authority is to be exercised in
accordance with the general procurement codes rules,
requirements, and procedures to the maximum extent possible.11 In
fulfilling this responsibility, the Regents have retained the
general procurement codes requirement that a bidder have standing
as an interested party in order to file a protest of a contract
award.12 As defined by Board of Regents Policy P05.06.990(a)(7),
an interested party is an actual or prospective bidder or offeror
whose economic interest might be affected substantially and
directly by the issuance of a contract solicitation, the award of
a contract, or the failure to award a contract. This definition
mirrors the general procurement codes definition of an interested
party, but omits the codes explanation that whether an actual or
prospective bidder or offeror has an economic interest depends on
the circumstances.13 In sum then, both the Universitys
regulations and the general procurement code require UAF to
determine whether Lakloeys economic interests might be affected
substantially and directly by the outcome of its protest.
Although UAF did not initially question Lakloeys
standing, it later reversed course and concluded that Lakloey did
not in fact satisfy the requirement that it be an interested
party. The final decision issued by UAFs hearing officer noted
that Lakloey was not the next lowest bidder after U.S. Filter,
and would not have received the award, even if U.S. Filters bid
had been disallowed. The decision then went on to reason that
because Lakloey would not receive the award if its protest proved
successful, it did not have an economic interest that may be
substantially and directly affected by the award of the contract
or failure to award it. Consequently, the decision concluded
that Lakloey [did] not have standing, under the specific
circumstances here, as an interested person. On appeal, UAF
maintains that this decision and line of reasoning are correct.
Lakloey responds that its status as a bidder who placed a bid for
the deionization system is sufficient to establish that it is an
interested party in this case.
We begin our analysis by noting that the proper
standard of review to apply to this issue is not readily
apparent. It is unclear whether UAF believes that it is the
general procurement codes provisions or the Universitys own
regulations that require Lakloey to be the next lowest bidder.
The final decision issued by UAFs hearing officer cited only the
general procurement code; on the other hand, the brief filed in
this case by UAF while still focused primarily upon the general
procurement code cites both the code and the Universitys own
regulations. It is equally unclear whether such a distinction
between law and regulation is of any significance in this case
since, as already noted, the general procurement code demands
that the Universitys regulations mirror the codes rules,
requirements, and procedures to the maximum extent possible.14
Because we conclude that UAFs interpretation of the phrase
interested party, which requires that Lakloey be the next lowest
bidder, is unreasonable even under the more deferential
reasonable and not arbitrary test reserved for reviewing an
agencys interpretation of its own regulations, we need not
resolve these ambiguities here.15
We have previously noted that in exchange for a bidders
investment of the time and resources involved in bid preparation,
a government agency must be held to an implied promise to
consider bids honestly and fairly.16 In other words, agencies
implicitly guarantee potential bidders that their expenditures of
time and resources on bid preparation will not be wasted on an
unfair or dishonest bidding process. Bidders undoubtedly possess
an economic interest in ensuring that agencies honor this
implicit guarantee, and it is this interest that Lakloey seeks to
vindicate.
From its initial protest to its current appeal, the
core of Lakloeys argument has been that Amendment No. 1 was a
material change to the IFB and that U.S. Filter did not recognize
or meet the demands of Amendment No. 1. More specifically,
Lakloey contends that Amendment No. 1 established specifications
that exceeded the capabilities of the brand name model identified
in the original IFB and that U.S. Filters bid for the brand name
model was therefore non-responsive. If Lakloeys contention is
correct, then UAF may have breached its guarantee to consider
bids fairly and honestly by awarding the contract to U.S. Filter
by assessing the responsiveness of bids based upon incorrect
criteria, accepting a product markedly different from the one it
asked for, and ultimately wasting the time and resources of
bidders who could have potentially chosen to offer a less capable
product at a better price or chosen not to bid at all. Lakloey
certainly has an economic interest in ensuring that its bid was
honestly and fairly considered and its time and resources
expended on placing that bid not wasted.
Of course, standing to file a protest requires more
than an economic interest in ensuring that the procurement
process was fair and honest. Under both the general procurement
code and the Universitys regulations, a bidder must possess an
economic interest that might be affected substantially and
directly by the outcome of its protest. As the general
procurement code notes, whether or not a bidder possesses such an
interest is necessarily dependent upon the circumstances,17 and
the circumstances of this case dictate that Lakloey is indeed an
interested party with standing to protest.
UAF determined that five of the six bids submitted for
the deionization system were administratively and technically
responsive to the requirements laid out in the IFB and Amendment
No. 1. Out of these five responsive bids, UAF determined that
U.S. Filter was the low bidder, Frontier Plumbing Supply the
second lowest, and Lakloey the third lowest. The final decision
issued by UAFs hearing officer reasoned that because Lakloey was
determined to be the third lowest responsive bidder, it would not
receive the contract even if its protest proved successful. As a
result, the opinion concluded that Lakloey did not have an
economic interest in the outcome of its protest. But the very
nature of Lakloeys argument precludes this conclusion.
Lakloey asserts that UAF ignored Amendment No. 1s
heightened specifications and evaluated the responsiveness of
U.S. Filters bid using the wrong criteria. Assuming that UAF
used the same criteria in evaluating all of the bids and there
is nothing in the record to suggest that it did not then
Lakloeys assertion calls into question the responsiveness of
every bid submitted. Until it is determined what criteria and
specifications UAF used in evaluating the bids, it is impossible
to know the proper ordering of the bids. If Lakloey prevails on
its protest and the award to U.S. Filter is revoked, it may turn
out, upon application of the correct criteria, that the second
lowest bidder is not in fact responsive. This eventuality would
place Lakloey which is currently understood to be the third
lowest bidder as the low bidder. In other words, Lakloeys
economic interest might be affected directly and substantially by
the outcome of its protest.
We therefore conclude that Lakloey is an interested
party with standing to protest UAFs award to U.S. Filter. Of
course, this is not to say that UAF may never deny a protesting
bidder standing because that bidder is not next in line to
receive the contract. There may in fact be many situations in
which it would be entirely reasonable for UAF to deny a bidder
standing solely on this basis. Our decision today merely
maintains that the requirement that a protesting bidder be the
next lowest bidder cannot reasonably be applied under the
circumstances presented by this case.
B. Lakloey Is Entitled to a Hearing on the Merits.
In accordance with the general procurement code, UAF
awards contracts to the lowest responsive bidder whose bid
conforms in all material respects to the requirements and
criteria set out in the invitation to bid.18 Similarly, the
University of Alaska Procurement Manual maintains that a bids
nonconformity does not render that bid non-responsive when the
effect on price, quantity, quality or delivery is negligible and
is determined by the procurement officer to be a minor
informality.19 We have previously explained that a bidders
nonconformity is material under the general procurement code if
it gave that bidder a substantial advantage over conforming
bidders.20 UAF agrees that this is also the proper test with
regard to whether a bidders nonconformity is negligible under the
Universitys guidelines.21 As we have previously explained, we . .
. review an agencys determination of [a bidders] responsiveness
under the reasonable basis standard.22
At the heart of Lakloeys protest lies the contention
that Amendment No. 1 represented a material amendment and worked
a material change to the IFB. Underlying this central contention
is Lakloeys factual assertion that the amendment establishe[d]
feed water [and other technical] requirements which exceed[ed]
the capabilities of the specific brand name model identified in
the initial IFB. As a result, Lakloey argues, U.S. Filters
eventual offer of the brand name model specified in the original
IFB did not meet Amendment No. 1s requirements and was therefore
not responsive and should not have been awarded the contract.23
The final decision issued by UAFs hearing officer
maintained that [t]he amendment added or clarified specifications
that other brands or models would have to comply with, but it did
not affect any bids for the exact model specified [in the IFB],
which already met those specifications. Based upon this premise,
the decision reasoned that Amendment No. 1 created no additional
burden for U.S. Filter because it submitted a bid for the exact
model specified. Therefore, the decision concluded, U.S. Filters
failure to acknowledge the amendment did not give it any
advantage under the circumstances. Taken in isolation, these
portions of the decision could be read as holding that Lakloeys
factual assertions were simply untrue that Amendment No. 1 did
not in fact require specifications for non-brand name models that
significantly exceeded the capabilities of the brand name model
specified in the original IFB. However, throughout the course of
the administrative process below, the hearing officer repeatedly
asserted that Lakloeys protest did not require the resolution of
any disputed factual issues, and the final decision once again
reiterated that Lakloeys appeal involved no genuine issues of
material fact.24 As a result, the hearing officers decision can
only be understood as holding the following: even assuming the
truth of Lakloeys factual assertions about Amendment No. 1, that
amendment did not as a matter of law affect bids for the brand
name model specified in the original IFB.
But the original IFB noted that its identification of a
brand name model was merely a shorthand method of describing the
standard of quality, performance and characteristics [that UAF]
desired. Amendment No. 1 subsequently provided additional
information about the technical specifications that UAF desired.
Under standard contract law and the terms of the original IFB
itself,25 it is the last-in-time offer that prevails. In this
case, it was Amendment No. 1 that was last-in-time, and that
amendment and its specifications were therefore, as a matter of
law, the proper benchmark against which to measure each of the
bidders responsiveness. If Lakloey is correct that Amendment
No. 1 required specifications that exceeded the capabilities of
the brand name model specified in the original IFB, then U.S.
Filters bid for the brand name model may not have conformed with
UAFs requirements and specifications, and that nonconformity may
have provided U.S. Filter with a substantial advantage over other
bidders.
In the end then, Lakloeys protest presents two
questions: (1) did Amendment No. 1 contain technical
specifications that exceeded the brand name models
specifications, and, if so, (2) were these technical
specifications so significantly different from the brand name
models specifications as to give U.S. Filter a substantial
advantage over bidders who conformed with the amendment. Both of
these questions implicate technical factual issues,26 and Lakloey
is therefore entitled to a hearing under the general procurement
code and the Universitys own regulations.27 Consequently, we
remand this case to UAF.28 Because we do not reach the merits of
Lakloeys challenge, we do not decide whether Lakloey is entitled
to its bid preparation costs.
V. CONCLUSION
For the foregoing reasons we REVERSE the decision of
the superior court and REMAND to UAF for further proceedings
consistent with this opinion.
_______________________________
1 The IFB stated that UAF sought a U.S. Filter Model
CDILX2404A4AB or equal.
2 The amendment stated: This Amendment must be signed
and returned with your bid, or otherwise acknowledged, prior to
the Opening Date and Time listed above.
3 The protest letter was dated May 1, 2003, but the
parties agree that the letter was incorrectly dated and actually
sent on May 30.
4 Board of Regents (BOR) Policy P05.06.617(a) states that
a protest or contract dispute shall be resolved in accordance
with the provisions of AS 36.30.56036.30.699 and
P05.06.61705.06.695. AS 36.30.565(a) provides, in relevant part,
that a protest based upon alleged improprieties in an award . . .
must be filed within 10 days after a notice of intent to award
the contract is issued by the procurement officer.
5 AS 36.30.560(5) states that a protest shall include the
form of relief requested.
6 The Director of Purchasings protest report stated that
Amendment #1 provided clarifying information, but did not change
the brand name or equal item description of the solicitation in
any way. As such, the protest report concluded, [f]or a bidder
offering the exact brand name product specified in the
solicitation, return of Amendment #1 was a minor informality . .
. [that] was waived by UAF.
7 The hearing officer stated he wanted briefing on the
following issues:
When the Notice of Intent to [A]ward was
issued and how it was sent to Lakloey and
when it was received by Lakloey. When Lakloey
filed its Protest and its Appeal and how they
were sent to the University and when they
were received. Any other relevant dates
regarding timeliness.
8 Gunter v. Kathy-O-Estates, 87 P.3d 65, 68 (Alaska
2004).
9 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
10 AS 36.30.005(c) provides, in relevant part:
Notwithstanding other provisions of law, all
rights, powers, duties, and authority
relating to the procurement of supplies,
services, professional services, and
construction and the disposal of supplies for
the University of Alaska are transferred to
the Board of Regents.
11 AS 36.30.005(c) states the following: To the maximum
extent possible, authority granted under this subsection shall be
exercised in accordance with this chapter.
12 BOR Policy P05.06.617(a) (stating that protests shall
be resolved in accordance with AS 36.30.560.699 and
P05.06.617.695).
13 The full text of AS 36.30.699 provides:
[I]nterested party means an actual or
prospective bidder or offeror whose economic
interest may be affected substantially and
directly by the issuance of a contract
solicitation, the award of a contract, or the
failure to award a contract; whether an
actual or prospective bidder or offeror has
an economic interest depends on the
circumstances.
14 AS 36.30.005(c); but see Gunderson v. Univ. of Alaska,
Fairbanks, 922 P.2d 229, 233 (Alaska 1996) (holding that, despite
AS 36.30.005(c), the appropriate standard for reviewing the
decision of the Universitys chief procurement officer is the
reasonable basis standard rather than the substitution of
judgment standard).
15 Were UAFs argument based solely upon its interpretation
of the general procurement code, we would apply the substitution
of judgment test. As we have previously noted, standing in this
state is a judicially created doctrine. Bowers Office Products,
Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097 (Alaska 1988). In
addition, it is a doctrine that the judiciary deals with on a day-
to-day basis in the course of carrying out its ordinary business.
As such, the judiciary is particularly adept at determining the
extent of injuries suffered by or the general interests of
potential litigants. Nothing about this particular case is so
peculiar as to cast doubt upon the judiciarys competence to
decide the issue of standing or to bring the issue within the
sphere of UAFs expertise. In short, whether Lakloey has standing
as an interested party under AS 36.30.005(c) is a question of law
that does not involve any agency expertise.
16 King v. Alaska State Hous. Auth., 633 P.2d 256, 263
(Alaska 1981); see also Laidlaw Transit, Inc. v. Anchorage Sch.
Dist., 118 P.3d 1018, 1025 (Alaska 2005) (noting that the state
owed all bidders a fair and honest consideration of their
proposals) (citations omitted).
17 AS 36.30.699.
18 AS 36.30.170(a) (emphasis added).
19 Section 5.2(c).
20 Laidlaw Transit, 118 P.3d at 1032.
21 BOR Policy P05.06.990(a)(8) takes a similar approach in
defining minor informalities. According to that policy, minor
informalities are insignificant matters that . . . can be waived
or corrected without prejudice to other bidders or matters of
form rather than substance.
22 Laidlaw Transit, 118 P.3d at 1032.
23 Lakloey also raises two secondary arguments: (1) U.S.
Filter should not have been permitted to amend its bid after the
bid opening, and (2) the procurement IFB and procurement process
amounted to an inappropriate brand name or sole source
specification. However, these arguments were first raised in
Lakloeys second protest letter, and there is substantial evidence
to support UAFs determination that this letter was untimely
except as an appeal. These arguments, therefore, were waived.
24 On appeal, UAF similarly maintains that Amendment No. 1
made no change to the objective standards established by the
original IFB and that there were no contested issues of fact.
25 The IFB provided the following: The University may make
modifications within the general scope of this order by giving
notice to Seller and subsequently confirming such modifications
in writing. The IFB also noted that [i]t shall be the bidders
responsibility to ascertain prior to submitting a bid that he/she
has received all amendments issued and bidder shall acknowledge
their receipt in the bid.
26 For instance, determining whether the technical
specifications in the amendment were significantly different from
the brand name models specifications may raise the following
factual issues: (1) the technical and practical effects that the
different specifications would have on the water quality, and (2)
the price difference between systems meeting the different
specifications.
27 AS 36.30.610(b) allows a decision on appeal to issue
without a hearing if the appeal involves questions of law without
genuine issues of fact. BOR Policy P05.06.617(a) states that a
protest or contract dispute shall be resolved in accordance with
the provisions of AS 36.30.56036.30.699 and P05.06.61705.06.695.
28 Because we are convinced that a remand will resolve the
majority of potential due process issues raised by this case, we
decline to reach Lakloeys due process arguments or decide whether
those arguments have been waived. Lakloey does, however, raise
one issue that gives us pause. In its opening brief on appeal,
Lakloey questions the propriety of the Chief Procurement Officers
employment of a single attorney as both his advisor and the
hearing officer. Although this dual employment raises concerns,
we do not reach the issue for two reasons. First, Lakloey
concedes in its reply brief that this issue was not raised in
this appeal and is not before the court. Second, UAF has the
opportunity on remand to employ a new hearing officer who has not
also acted as the Chief Procurement Officers advisor.
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