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Davis Wright Tremaine LLP v. State, Department of Administration

Supreme Court of Alaska

May 9, 2014


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[Copyrighted Material Omitted]

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Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael Spaan, Judge. Superior Court No. 3AN-12-04933 CI.

Robert K. Stewart Jr., Davis Wright Tremaine LLP, Anchorage, and John Parnass, Pacifica Law Group, Seattle, Washington, for Appellant.

Rachel L. Witty, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Susan Orlansky and Jeffrey M. Feldman, Feldman Orlansky & Sanders, Anchorage, for Amicus Curiae Van Ness Feldman, A Professional Corporation.

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. [Maassen, Justice, not participating.].


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WINFREE, Justice.


A state agency issued a request for proposals for legal services. A law firm delivered its proposal after the submission deadline, but the procurement officer accepted the proposal and forwarded it to the evaluation committee. After the agency issued a notice of intent to award that law firm the contract, a second law firm protested, alleging that the evaluation committee made scoring errors and that consideration of the late-filed proposal was barred by a relevant regulation and the request for proposals. The procurement officer sustained the protest, rescinded the original award, and awarded the second law firm the contract. The first law firm then protested, claiming: (1) the second law firm's protest should not have been considered because it was filed after the protest deadline; (2) the first law firm's proposal was properly accepted because the delay in submission was immaterial; and (3) the second law firm's proposal was nonresponsive because that firm lacked a certificate of authority to transact business in Alaska. The procurement officer rejected that protest and the first law firm filed an administrative appeal. The administrative agency denied the appeal, and the first law firm appealed the agency decision to the superior court, which affirmed the administrative agency ruling.

We conclude that the administrative agency acted reasonably in accepting the second law firm's late-filed protest and deeming that firm's proposal responsive notwithstanding its lack of a certificate of authority. We also conclude that the agency's interpretation that its regulation barred acceptance of the first firm's late-filed proposal is reasonable and consistent with statute. We therefore affirm the superior court's decision upholding the final agency decision.


A. Facts

In early 2011 the State of Alaska, Department of Law, issued a Request for Proposals (RFP) for legal counsel to assist the Alaska Energy Authority in obtaining a federal license for construction and operation of a hydroelectric project. The RFP required that, to receive consideration, a proposal must be received at the Department of Law in Juneau by 3:00 p.m. on June 17, 2011. The RFP warned: " It is your responsibility to ensure that the proposal arrives at the address indicated above before the deadline for receipt. Proposals received after 3:00 pm, on June 17, 2011, will be rejected and returned to the sender." The RFP reserved the State's right to " [r]eject any or all proposals received and to waive deviations from the terms of the RFP if the State determines the deviations are not material." The RFP also required that " all offerors hold a valid Alaska business license and any necessary applicable professional licenses required by Alaska Statute." The Department of Law notified prospective offerors on June 14 that the deadline for receipt of proposals had been changed to 3:00 p.m. on June 29.

Van Ness Feldman and six other law firms delivered proposals before the June 29 deadline. Davis Wright Tremaine, in partnership with another law firm, prepared to mail its proposal on June 27, but discovered an error in the cover letter and recalled its office services messenger before the proposal actually was mailed. Davis Wright Tremaine delivered the corrected proposal to the U.S. Postal Service in San Francisco the next day -- June 28 -- for Express Mail delivery to the Department of Law in Juneau. The Postal Service guaranteed delivery by 3:00 p.m. on June 30, the day after submissions were due. After the package mistakenly was

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routed through Wenatchee, Washington, the Postal Service attempted delivery at the Department of Law on June 30, but found no one available to accept delivery. The Postal Service delivered the package to the Department of Law on July 1.

The Department of Law's procurement officer initially believed she had discretion to waive Davis Wright Tremaine's failure to deliver its proposal before the deadline. Because she believed Davis Wright Tremaine " tried in good faith to make [the] deadline and the delays caused by the [Postal Service] were out-of-[Davis Wright Tremaine's] control," the procurement officer forwarded Davis Wright Tremaine's proposal to the evaluation committee for consideration.

The reviewers determined that Davis Wright Tremaine's proposal was the " most advantageous" to the State, and on July 22 the Department of Law issued a Notice of Intent to award Davis Wright Tremaine the legal services contract. On August 5 Van Ness Feldman -- which had the third-ranked proposal -- asked the procurement officer to provide the scoring breakdown, comments from the reviewers, and the two top-scoring proposals. On August 16 Van Ness Feldman filed a protest of the ...

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