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Hawaiian Dredging Construction Co., Inc. v. Department of Transportation

Intermediate Court of Appeals of Hawaii

November 29, 2013

HAWAIIAN DREDGING CONSTRUCTION COMPANY, INC., Petitioner-Appellee,
v.
DEPARTMENT OF TRANSPORTATION, STATE OF HAWAI'I, Respondent-Appellant, and GOODFELLOW BROS., INC., Intervenor

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 09-1-0832-04)

Stella M.L. Kam Presiding Judge Donna H. Kalama Deputy Attorneys General for Respondent-Appellant

Associate Judge Keith Y. Yamada David F.E. Banks (Cades Schutte) for Petitioner-Appellee Associate Judge

Foley, Presiding Judge, Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

This is a secondary appeal arising out of a State of Hawai'i (State) procurement dispute involving Respondent-Appellant-Appellant State Department of Transportation (DOT), Petitioner-Appellee-Appellee Hawaiian Dredging Construction Company, Inc. (Hawaiian Dredging), and Intervenor-Appellant-Appellee Goodfellow Bros., Inc. (Goodfellow). DOT appeals from the March 1, 2011 Judgment entered by the Circuit Court of the First Circuit (Circuit Court), [1] in favor of Hawaiian Dredging, and against DOT and Goodfellow, affirming the Department of Commerce and Consumer Affairs' (DCCA) Findings of Fact, Conclusions of Law and Decision, entered on April 3, 2009 (PCH-2009-1 Decision), which concluded that Hawaiian Dredging was entitled to an award of proposal preparation costs under Hawaii Revised Statutes (HRS) § 103D-701(g) (2012).[2] DOT also challenges the following: (1) a September 1, 2009 order, which denied DOT and Goodfellow's requests to take judicial notice of DCCA's subsequent findings of fact, conclusions of law and decision, entered on July 2, 2009, (PCH-2009-9 Decision) on a related matter; and (2) an oral ruling by the Circuit Court on August 26, 2009, which denied consolidation of DOT and Goodfellow's appeal from the PCH-2009-1 Decision with Hawaiian Dredging's appeal from the PCH-2009-9 Decision.

In its points of error on this appeal, DOT contends that the Circuit Court erred when it: (1) denied the State's motion to take judicial notice of PCH-2009-9 Decision; (2) refused to consolidate the appeals of the PCH-2009-1 Decision and the PCH-2009-9 Decision; and (3) affirmed the DCCA's award of proposal preparation costs to Hawaiian Dredging.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve DOT's points of error as follows:

(1) DOT challenges the Circuit Court's denial of its motion for judicial notice on the ground that the Circuit Court "foreclosed its ability to have the full record of pertinent facts on the issue of the appropriateness of a proposal preparation costs award to [Hawaiian Dredging]." DOT also points to the DCCA's footnote in the PCH-2009-9 Decision, which notes that costs were awarded in the PCH-2009-1 Decision because Hawaiian Dredging's proposal "was not in evidence and therefore not subject to review." Therefore, DOT argues, the Circuit Court "disregarded the compelling circumstances in this case[, ]" by refusing to take judicial notice of the PCH-2009-9 Decision.

Judicial review may be instituted in the Circuit Court by parties who are aggrieved by a final decision of a hearings officer in a section 103D-709 administrative proceeding. HRS § 103D-710(a) (2012). Review "shall be conducted on the record of the administrative proceedings, and briefs and oral argument."[3] HRS § 103D-710 (d) (2012) (emphasis added). Moreover,

[n]o new evidence shall be introduced, except that the circuit court may, if evidence is offered which is clearly newly discovered evidence and material to the just decision of the appeal, admit the same.

Id. Upon review of the administrative record, the Circuit Court may affirm the decision of the hearings officer, remand the case with instructions for further proceedings, or reverse or modify the decision and order

if substantial rights may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: . . . (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or ...

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