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In re Alii Security Systems, Inc.

Intermediate Court of Appeals of Hawaii

February 13, 2014

IN THE MATTER OF ALII SECURITY SYSTEMS, INC., Petitioner-Appellant,
v.
DEPARTMENT OF TRANSPORTATION, STATE OF HAWAI'I; DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAI'I, Respondents-Appellees

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-0572-03)

Christopher A. Dias for Petitioner-Appellant

Stella M.L. Kam Patricia T. Ohara Deputy Attorneys General for Respondent-Appellee DEPARTMENT OF TRANSPORTATION, STATE OF HAWAI'I

Leonard, Presiding Judge, Reifurth and Ginoza, JJ.

MEMORANDUM OPINION

In this secondary appeal, Petitioner-Appellant-. Appellant Alii Security Systems, Inc. (Alii) appeals from the Circuit Court of the First Circuit's (Circuit Court's) August 16, 2012 Final Judgment affirming the decision by Respondent-Appellee-Appellee Department of Commerce and Consumer Affairs, State of Hawai'i (DCCA) in favor of Respondent-Appellee-Appellee Department of Transportation, State of Hawai'i (DOT).[1]

I. RELEVANT FACTS

"On [] July 25, 2011, the DOT issued a Request for Bids for a project entitled Furnishing Security Services for Commercial Harbor Facilities on the Island of Oahu, Job HAR-O.D. 2-11 [.]" The RFP set a deadline of August 25, 2011 for the submission of sealed bids, stated that bids would be opened on that date, and further provided that "the award of contract, if it be awarded, will be made within sixty (60) calendar days after the opening of bids to the lowest responsive and responsible bidder whose proposal complies with all the prescribed requirements."

Alii was the incumbent security service provider for State property at Honolulu Harbor. In 2011, rather than extending Alii's contract, the DOT put the service contract out to bid.

DOT had not awarded the contract as of October 24, 2011, which was the 60th day after the bids were opened on August 25, 2011. On November 1, 2011, DOT awarded the contract to Professional Security Consultants, Inc. (PSC). On November 2, 2011, DOT posted notice of the award on the State Procurement Office' s (SPO's) website.

On November 30, 2011, Alii reportedly learned that the contract had been awarded to another bidder. That same day, Alii filed its procurement 'protest of the award to PSC with the DOT Director. In its protest letter, Alii raised issues of lack of good faith, lack of adequate notice, lack of meaningful opportunity to participate in the bid process, arbitrary and improper selection of bidder, and "other valid reasons under the law."

In a letter dated January 18, 2012, the DOT Director denied Alii's protest. On January 25, 2012, Alii requested administrative review of the DOT's denial by filing a request for administrative hearing with the DCCA's Office of Administrative Hearings. Alii moved for summary judgment, and DOT filed a motion to dismiss Alii's request for hearing, or alternatively, for summary judgment.

On February 15, 2012, oral arguments on the motions were held. The hearings officer issued a preliminary oral ruling granting DOT's motion and denying Alii's motion.

On February 24, 2012, the DCCA hearings officer issued Findings of Fact, Conclusions of Law, and Decision (Decision) that, inter alia: (1) granted DOT's motion to dismiss Alii's request for hearing or alternatively for summary judgment; (2) denied Alii's motion for summary judgment as moot; and (3) affirmed DOT's denial of Alii's procurement protest. The hearings officer concluded that: (1) Alii's November 30, 2011 protest was untimely; (2) the contents of Alii's November 30, 2011 protest were insufficient; (3) the deadline to file a protest was not equitably tolled; and (4) DOT's failure to award job HAR-O.D. 2-11 within 60'days as required by the RFP was excused.

On March 2, 2012, Alii appealed to the Circuit Court from the DCCA's Decision. A hearing was held on July 27, 2012. On August 16, 2012, the Circuit Court entered an order affirming the hearings officer's February 24, 2012 Decision in favor of DOT, as well as the Final Judgment.

On September 14, 2012, Alii timely filed a notice of appeal.

II. POINTS OF ERROR

Alii raises three point's of error on appeal, asserting that the Circuit Court erred by: (1) affirming the hearings officer's decision that Alii's protest was untimely; (2) affirming the hearings officer's decision that DOT acted in good faith; and (3) affirming the hearings ...


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