9 FSM Intrm.390-406

A suit for injunctive relief is the appropriate vehicle by which to challenge a contract award under public bidding statutes because as a general rule, a declaratory judgment and an injunction are the only adequate means of protecting the public interest, the integrity of the competitive bidding process, and the individual bidder's rights. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 394 (Yap 2000).

In an appeal from an administrative agency under 10 Y.S.C. 164, judicial review is be confined to the record, and upon any party's request, the court will receive briefs and hear oral argument, and the court also may, in it discretion, receive any evidence necessary to supplement the record. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 394-95 (Yap 2000).

The standard for judicial review of an agency decision under 10 Y.S.C. 165 is the court may reverse or modify the agency's decision, or remand the case for further proceedings if the petitioner's substantial rights have been prejudiced because the agency's decision is a) in violation of applicable constitutional or statutory provisions; b) in excess of the agency's statutory authority; c) made upon unlawful procedure; d) affected by other error of law; e) clearly erroneous in view of the reliable, probative and substantial evidence in the whole record; or f) arbitrary, capricious, or characterized by abuse of discretion. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

In judicial review of an agency decision the court may not substitute its judgment for that of the agency as to issues of fact, and the court shall give appropriate weight to the agency's experience, technical competence, and specialized knowledge. Hence, the deference paid to an agency's technical expertise is an implicit part of the abuse of discretion standard applied by a reviewing court. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

A court must fully take into account the discretion that is typically accorded an official in the procurement agencies by statutes and regulations. Such discretion extends not only to the evaluation of bids submitted in response to a solicitation but also to the agency's determination with respect to the application of technical, and often esoteric, regulations to the complicated circumstances of individual procurement. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 396 (Yap 2000).

Under 9 Y.S.C. 528, all Yap state government contracts must be in writing and be executed by the agency which is authorized to let contracts in its own name and must be made with the lowest responsible bidder. The lowest responsible bidder is the lowest bidder whose offer adequately responds in quality, fitness, and capacity to the particular requirements of the proposed work called for by the contract. The lowest responsible bidder may be the bidder who submits the lowest price, but not necessarily. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 397 (Yap 2000).

responsible bidder or advertise anew for bids. In each instance the officer, at his discretion, after determining the lowest responsible bidder, may negotiate with that bidder, and that bidder only, to reduce the scope of work and to award the contract at a price which reflects the reduction in the scope of work. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 397 (Yap 2000).

While the better procedure under 9 Y.S.C. 528 would have been for Public Works to formally select the second lowest bidder as the lowest responsible bidder before beginning negotiations with it to reduce the scope of work, and consequent price, the essential point is that the state had legally sufficient reasons for rejecting the lowest bidder's bid when it did so. As a result, no substantial right of the lowest bidder was violated by the state's failure to strictly conform to the statutory procedure. The court therefore will not reverse, modify, or remand the case for further proceedings pursuant to 10 Y.S.C. 165 on the basis of the state's negotiations with the second lowest bidder. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 398 (Yap 2000).

Materials provided by the state, however denominated, must provide sufficient specificity to permit real competition between the bidders on contracts, and fair comparison among the several bids. The state-provided specifications may be sufficient to provide real competition and a fair comparison although the bid form requires the bidder to provide additional specifications. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 400 (Yap 2000).

When the state's bid documents provided specifications for metal buildings in extreme detail it could properly require a contract bidder to provide the brand name and additional specifications for the metal buildings as part of its bid, and could reject the bid on this basis when those items were not provided. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 401-02 (Yap 2000).

The lowest responsible bidder for a contract for public work is one who is responsible and the lowest in price on the advertised basis. The term "responsible" as thus used is not limited in its meaning to financial resources and ability. Authorizations of this kind invest public authorities with discretionary power to pass upon the bidder's experience and his facilities for carrying out the contract, his previous conduct under other contracts, and the quality of his previous work, and when that discretion is properly exercised, the courts will not interfere. A bidder's experience in his field of expertise is a valid factor which may be considered in evaluating competing bids in order to determine the lowest responsible bidder. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 403 (Yap 2000).

It is not for the court to second-guess the state's determination that a bidder's related experience was insufficient to qualify it as the lowest responsible bidder because a court has no warrant to set aside agency actions as arbitrary or capricious when those words mean no more than that the judge would have handled the matter differently had he been an agency member. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 404 (Yap 2000).

When the statute provides that any bid which does not comply with the bid advertisement's requirements or the statutory provisions shall be rejected, and when the bidder's qualification statement makes it clear that failure to provide any of the information requested may result in the contracting officer's rejection of the bid, the lack of materially relevant information required by the bid documents was a sufficient basis upon which to reject the bid. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 405 (Yap 2000).

Although the statute requires the state to determine before a bid is submitted whether a potential bidder's financial ability to perform the work and its experience in performing similar work, the state may also require that a bidder provide, as part of its bid package, additional information regarding the qualifications of those specific individuals within its organization who would be working on the project. International Bridge Corp. v. Yap, 9 FSM Intrm. 390, 406 (Yap 2000).

On March 21, 2000, plaintiff International Bridge Corporation ("IBC") filed its Motion for Temporary Restraining Order/Motion for Preliminary Injunction. By previous order of March 28, 2000, the application for a temporary restraining order was denied. For the reasons set out below, the application for a preliminary injunction is also denied. IBC's Complaint for Injunctive/and/or [sic] Declaratory Relief, filed along with its application for a restraining order and injunctive relief, is dismissed with prejudice.

Pursuant to 10 Y.S.C. 161, IBC appealed the decision of the Yap Department of Public Works and Transportation ("Public Works"), an agency of the state of Yap, awarding the contract for the Yap Sports Complex to its competitor, defendant Black Micro Corporation ("Black"). Section 161(a) of the Yap State Code provides in pertinent part that one who "has exhausted all administrative remedies available within an agency and who is aggrieved by a final decision in a contested case shall be entitled to judicial review." IBC pursued its appeal by filing on March 21, 2000, an application for temporary restraining order and preliminary injunction in which it sought to enjoin any further work by Black on the project, and sought a hearing for the purpose of establishing that IBC, and not Black, was the lowest responsible bidder entitled to the award of the contract under 9 Y.S.C. 528. In the complaint, IBC asked the court to direct Yap state ("Yap") to award the contract to the lowest responsible bidder. As noted in the court's previous order of April 3, 2000, a suit for injunctive relief is the appropriate vehicle by which to challenge a contract award under public bidding statutes.Owen of Georgia, Inc. v. Shelly County, 648 F.2d 1084, 1094 (6th Cir. 1981) ("As a general rule, a declaratory judgment and an injunction are the only adequate means of protecting the public interest, the integrity of the competitive bidding process, and the rights of the individual bidder.")

On March 28, 2000, the court denied IBC's application for a temporary restraining order. The court further noted that as an appeal from an administrative agency, the case would proceed under 10 Y.S.C. 164, which provides in pertinent part that "[t]he review shall be confined to the record," and that "[u]pon request by any party, the court shall receive briefs and hear oral argument." On Monday, April 3, 2000, the court heard oral argument on Black's two motions to dismiss, and further directed that the parties submit written arguments. The motions to dismiss were denied by order of the same date, April 3, 2000. The court has subsequently received and considered the following:

In mid-January of 2000, Public Works issued an invitation to bid for the construction of the Yap Sports Complex, a design/build project, which is the designated site for the 2001 FSM Games. Public Works held a pre-bid conference on February 15, 2000. IBC submitted its bid on February 29, 2000, and the bids were opened the same day. IBC's bid was $5,419,482.00; Black's bid was $5,934,000.000, or more than a half a million dollars more than IBC's.

Shortly after the bids were opened, IBC heard through newspaper and internet articles that Public Works had begun negotiations with Black, the second lowest bidder, to see if Black would lower its bid. IBC then made inquiries about the status of its bid, and on March 14, 2000, received a fax from the Yap attorney general's office which stated that "Public Works has not made a decision yet as to which company should be awarded the Yap Sport Complex project. . . . Once a decision is made, and it is expected that such will be done this week, IBC will be informed of it." Three days later, March 17th, IBC received by fax a letter dated two days earlier on March 15th, which stated as follows:

IBC has contended that the March 15th letter did not expressly reject IBC's bid. While the letter did not use the words, "your bid has been rejected," by any fair reading the letter constituted a rejection. After receipt of the letter, on March 21, 2000, IBC filed its application for a temporary restraining order and preliminary injunction, and its complaint for injunctive and declaratory relief. After both Yap and Black filed responses, on March 28, 2000, the court without a hearing denied the application for temporary restraining order. On April 3, 2000, the court held a hearing at which it entertained argument on two motions to dismiss filed by Black, which were denied. At the hearing, the court also entertained discussion as to the record on appeal in this case. This order and memorandum follow.

The court dealt with this court's jurisdiction to hear IBC's appeal from Public Work's decision rejecting its bid by its order entered March 28, 2000, noting that IBC's appeal to this court is pursuant to 10 Y.S.C. 161(a), which provides that one who has exhausted all administrative remedies and "who is aggrieved by a final decision in a contested case shall be entitled to judicial review under this chapter." A point not made in the March 28th order, but which bears making, relates to "contested case." If "contested case" were taken to mean a formal adversarial proceeding after notice and at which both parties appeared to press their respective cases, then the question might arise whether this case was properly before the court in an appeal posture. Below, there was no formal adversarial proceeding in the sense just mentioned ) the parties submitted their bids, and the agency, Public Works, chose what it deemed to be the lowest responsible bidder. However, 10 Y.S.C. 102(b) resolves this point by defining "contested case" as "a proceeding in which the legal rights, duties or privileges of a party are determined." By awarding the contract to Black, and by rejecting IBC's bid, Public Works determined their respective "legal rights, duties, [and] privileges" relative to the contract for the Yap Sports Complex. Public Works' determination rendered the proceeding below a "contested case" within the meaning of 10 Y.S.C. 102(b), if not within the larger meaning of a formal adversarial hearing after notice. IBC properly pursued its appeal to this court by filing its suit for injunctive relief.

By the order of March 28, 2000, the court directed the parties to stipulate, if possible, to the record on appeal, since there were no formal proceedings as such below. At the hearing on April 3, 2000, and after consultation with the parties and no party offering an objection to the papers which had been submitted up to that point1, the court determined that record would consist of the parties' filings, including the exhibits to their various submissions, plus IBC's bid, which the court has designated as Parties' Exhibit 1, and the Contract Documents and Specifications, which are bound as a single 336 page volume and are designated Parties' Exhibit 2. Also at the hearing on April 3, 2000, the court permitted the parties to submit further affidavits under 10 Y.S.C. 164(a), which provides that "the court may, in it discretion, receive any evidence necessary to supplement the record." One

Further, 10 Y.S.C. 164(b) provides that the court "may not substitute its judgment for that of the agency" as to issues of fact, and that the court "shall give appropriate weight to the agency's experience, technical competence, and specialized knowledge." Hence, the deference paid to an agency's technical expertise is an implicit part of the abuse of discretion standard applied by a reviewing court. Or, as one court has put it, the court

must fully take into account the discretion that is typically accorded official in the procurement agencies by statutes and regulations. Such discretion extends not only to the evaluation of bids submitted in response to a solicitation but also to determination by the agency with respect to the application of technical, and often esoteric, regulations to the complicated circumstances of individual procurement.

Moreover, courts must be sedulous to heed the admonition that their authority to vacate and enjoin action that is illegal must be exercised with restraint less the courts fall into the error of supposing that they may revise "action simply because [they] happen to think it ill-considered, or to represent the less appealing alternative solution available." Calcutta East Coast of India and East Pakistan/USA Conference v. Federal Maritime Commission, 130 U.S.App.D.C. 261, 264, 399 F.2d 994, 997 (1968).

Id. at 1298-99. Hence, a reviewing court may not overturn a decision of a state agency unless the challenger meets the "heavy burden" of showing that the decision had "no rational basis" or "involved a clear and prejudicial violation of applicable statutes or regulations." Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C. Cir. 1971) (emphasis added).

On appeal, IBC contends it was the lowest responsible bidder under 9 Y.S.C. 528, which provides in pertinent part that "[a]ll contracts shall be in writing and shall be executed by the State Government agency which is authorized to let contracts in its own name and shall be made with the lowest responsible bidder." Under 9 Y.S.C. 502(c), "`[l]owest responsible bidder' means the lowest bidder whose offer adequately responds in quality, fitness, and capacity to the particular requirements of the proposed work called for by the contract." The "lowest responsible bidder" may be the bidder who submits the lowest price, but not necessarily. See 64 Am. Jur. 2d Public Works and Contracts § 68 (1972).

IBC mounts a two pronged attack on Public Works rejection of its bid. First, IBC asserts that Public Works violated statutory procedures by negotiating with Black before it determined the lowest responsible bidder, and also when it required the bidders to provide specifications as part of their bid ) i.e., it was Public Work's obligation under statute to provide all relevant specifications to the bidders, and not the other way around. Second, IBC contends that Public Work's rejection of the bid was arbitrary, capricious, and characterized by an abuse of discretion under 10 Y.S.C. 165(f) because IBC's bid adequately responded to the bid invitation. IBC asserts that the bid documents themselves contained all material specifications, and that in any event any additional specifications for the metal buildings did not have to be submitted with the bid, but post bid. IBC also urges that its bid adequately responded to the bid invitation because it was not required by the bid documents to provide information about the sports complex experience of its key staff, IBC itself, its architect, or its mechanical engineer. Finally, IBC asserts that all questions regarding IBC's qualifications had to be resolved pre-bid under the procedures set out in 9 Y.S.C. 524.

All contracts shall be in writing and shall be executed by the State Government agency which is authorized to let contracts in its own name and shall be made with the lowest responsible bidder. If the lowest bid is rejected, the contracting officer may, at his discretion, award the contract to the lowest remaining responsible bidder or advertise anew for bids pursuant to section 525 of this subchapter. In each instance the officer, at his discretion, after determining the lowest responsible bidder, may negotiate with that bidder, and that bidder only, to reduce the scope of work and to award the contract at a price which reflects the reduction in the scope of work.

IBC urges that Public Works ran afoul of the statutory procedure set out in 9 Y.S.C. 528 because the statute allows negotiations only with the lowest responsible bidder after that bidder has been determined. The court agrees. At the same time, the stated reason for conducting negotiations with Black was the incompleteness of IBC's proposal, the basis upon which IBC's bid was rejected in the March 15, 2000, letter. The court by this order, as set out further below, determines that three of the bases for that rejection as stated in the March 15, 2000, letter were legally sufficient. The determination that IBC's bid was incomplete, made prior to the lieutenant governor's statement, was a rejection of IBC's bid. Section 528 of title 9 contains no notice requirement, and notice to IBC that its bid had been rejected was not required under the statute before Public Works began negotiations with Black.

Section 165 of title 10 provides that "[t]he court may reverse or modify the decision of the agency, or remand the case for further proceedings if substantial rights of the petitioner have been prejudiced because the decision of the agency is: . . . (c) made upon unlawful procedure" (emphasis added). While the better procedure under 9 Y.S.C. 528 would have been for Public Works to formally select Black as the lowest responsible bidder before beginning negotiations with it to reduce the scope of work, and consequent price, the essential point is that Public Works had legally sufficient reasons for rejecting IBC's bid when it did so.2 As a result, no "substantial right" of IBC was violated by Public Works' failure to strictly conform to the statutory procedure set out in 9 Y.S.C. 528.

By its letter of March 15, 2000, faxed to IBC on March 17, 2000, which constituted notice to IBC of Public Works' rejection of its bid, Public Works specified five specific omissions, the first of which was the omission of the brand name and specifications of the metal building which was to be incorporated in the design/build portion of the project. By Yap's computation, $1,864,550.00, or a substantial portion of IBC's total bid of $5,491,482.00, was for the metal buildings.

IBC takes the position that as a matter of law, the onus was on Yap to provide the brand name and specifications for the metal buildings, and that Yap did not have the latitude under the statute to leave any metal building specifications as open terms for IBC to provide. IBC contends that "[u]nder a public bid statute, the contracting agency must provide all of the specifications. Complete and definite specification must be provided so that the selection between bidders can be made on clear, objective criteria, so that all bidders compete on an `equal footing'." Final Argument at 6-7. IBC concludes that "Yap could not have required bidders to supply the brand name or specifications for the building," and that to do so "would turn the competitive bidding process into a lottery [where] [t]he

winner would not be the lowest responsible bidder, but the bidder that could correctly guess what the CO [contracting officer] had in mind." Id. at 9 (footnote omitted.) Yap essentially responds to this assertion by noting that the Sports Complex is a "design/build" project, the advantages of which are that it enables the owner, in this case the state of Yap, to deal with one entity to provide both design and construction services, and is a useful method where time or cost is a prime concern to the owner. Second Affidavit of James Sarmog at 1-2. Yap also emphasizes the importance of the specifications that IBC was to provide for purposes of Public Works' evaluation of the bids, given the scope of the matters committed to the bidder in a design/build project. Def. Yap's Closing Argument and Motion to Dismiss at 8-9. Hence, a tension exists between the parties' contentions, with IBC insisting on Public Work's duty to provide specifications, while Public Works focuses on the importance to it of those specifications, the omission of which Public Works describes as "a fatal flaw in its bidding papers."Id. at 9.

IBC cites two useful cases from Massachusetts in the United States, Sweezey v. Mayor of Malden, 174 N.E. 269 (Mass. 1931), and Datatrol, Inc. v. State Purchasing Agent, 400 N.E.2d 1218 (Mass. 1980). In Sweezey, the village street commission had advertised for bids for street paving where the village provided no specifications as to the composition of the pavement, how the pavement was to be laid, or the area of the pavement. A village ordinance provided that village officials were required to "prepare, or cause to be prepared, plans and specifications . . . for furnishing labor and materials." 174 N.E. at 270. The court concluded, and rightfully so, that

[t]o permit each bidder to furnish his own specifications for the construction of the wearing surface might, and probably would, allow a substantial variance in the manner of construction and its cost. Such a method of bidding would not result in bids being submitted on any common basis. Where, as here, each bidder is invited to bid upon his own specification, it is plain that there can be no real competition between such bidders.

In Datatrol, at issue was whether or not so-called "problem-oriented" or "open parameter" bidding violated the state procurement statute. 400 N.E. 2d at 1226, 1229. At issue were bids for "sophisticated electronic equipment." Id. at 1226. The court concluded that though the state procurement statement did not require detailed specifications, it nevertheless required a "statement of the `quantity and quality of the item . . . to be furnished.'" Id. at 1229. Additionally,

[t]he statement must inform the bidders of the character of the contract to be awarded, so that their bids conform to the needs of the department. The statement must also be specific in order to ensure that the department can evaluate all of the bidders on a common footing. Cf. Detroit v. Hosmer, 79 Mich. 384, 388 (1890). The description need not label the item by a specific brand nor define it so rigidly that only one thing can comply. A determination that increased specificity is feasible is not necessarily fatal to the specification. However, the item to be purchased should be described with enough precision to permit fair comparison among the several bids.

Id. (emphasis added) (citation omitted). The principles set out in both Sweezey and Datatrol, to use a relevant metaphor, provide a solid foundation basic to preserving the structural integrity of the public bidding process. But those two cases are based on facts different from those at issue here, where Public Works provided to the bidders substantial, material, and detailed "information necessary [for a bidder] to make a knowing and fully informed bid." State Bidding Regulations § 2.6.

a construction project. However, 9 Y.S.C. 563 provides that "[t]he Governor shall issue regulations to implement this chapter . . . . Such regulations shall have the force and effect of law." Although the regulations do not require, in so many words, that Public Works provide specifications for any given project, the regulations do contemplate them. Section 1, the definitions section, defines "specifications" as "the technical provisions of construction or procurement" and section 2.6 provides that "[t]he bidder shall examine carefully the site of work contemplated and the proposal, plans, specifications, supplemental specifications, special provisions, all addenda issued, all applicable contract and bond forms, all applicable laws and regulations and any other sources of information necessary to make a knowing and fully informed bid." It follows that the materials provided by Public Works, however denominated, should provide sufficient specificity to permit "real competition between [the] bidders," Sweezey, 174 N.E. at 271, and "fair comparison among the several bids," Datatrol, 400 N.E.2d at 1229.

Although the Bid Form required the bidder to provide additional specifications about the metal buildings, the specifications that Public Works provided were sufficient to provide "real competition" and a "fair comparison." Part 4 of the Contract Documents and Specifications is entitled "Technical Specifications," and beginning with section 01570, runs to some 233 single spaced pages. Section 13000, at 214-24, is entitled "Design & Build Metal Buildings," while section 13001, at 225-30, is entitled "Design & Build Metal Structure Units/Bleachers, Stands, Announcer's Booth, and Bleacher Covering."3 These sections are, as IBC has emphasized, quite detailed.4 However, in addition to the

specifications provided in the Contract Documents and Specifications themselves, section 13.2 of the Bid Form provides that "[f]or the two pre-engineered metal buildings the contractor shall provide the brand name, specifications, schedule of delivery and construction, and price." Examples of specifications which are left open to the extent that they would only become known after the builder had chosen metal buildings of a specific brand are: "Primary Structural Bolts and Nuts: ASTM A325; size and quantity required by metal building system manufacturer"; "Prime Coat Paint: Manufacturer's standard"; and "Fastener spacing and type to be determined by manufacturer's standard offering." Contract Documents and Specifications at 219, 220. Section 527 of title 9 provides that "[a]ll bids on construction project contracts shall include . . . any other [materially] relevant information the contracting officer may require." Public Works concluded that the brand name and further specifications for the metal buildings constituted materially relevant information necessary for it to evaluate the bid. Under the standard of review set out in 10 Y.S.C. 164(b), the court will not disturb this finding.

"[i]n any section of the specification or plans where one or more brand names of materials or equipment are specified to indicate a quality, style appearance, or performance, the bidders shall base his/her bid on the specified brand names unless alternate brands are qualified as equal or better by the Contracting Officer.

The fact that bids are to be based on brand names where specified is different from saying that Public Works must specify the brand names in the first instance. It does not follow that the Public Works was required under section 2.2 of the State Bidding Regulations to provide the brand name and specifications for the metal buildings at issue, and that the Bid Form could not require this information as part of the bid proposal.

IBC makes the point that "the Bid Documents provided the specifications for the buildings in extreme detail," Final Argument at 12, and the court agrees. However, IBC goes one step further, and concludes that "[t]here were virtually no other specifications that the bidders could have provided." Id. (emphasis in the original). The court parts company with IBC here. As discussed above, the Contract Documents and Specifications referred to specifications for the metal buildings that could not have been determined until a metal building manufacturer had been selected.

IBC urges that any additional information about the metal buildings did not need to be supplied until after the award of the contract, and then by the winning bidder. IBC relies on the fact that part 4, section 13000, subpart 1.01 A of the Contract Documents and Specifications, provides that "[a]fter approval of A/E work the contractor shall purchase and construct the complete buildings." Although the contractor was to purchase the buildings post bid, this did not preclude Public Works from requiring the brand name and specifications pre bid. IBC also emphasizes that the Contract Documents and Specifications, part 1, subpart 1.18, "Post Bid Information," provides that the bidder will provide "[t]he proprietary names and the suppliers of principal items or systems of material and equipment proposed for the Work." Nothing about this general statement about providing proprietary names means that Public Works could not request the brand name of the buildings pre bid.

IBC also draws significance from the fact that the word "contractor," as opposed to "bidder," is used at various points in the bid documents, emphasizing that section 13.2 of the Bid Form requires the contractor, not the bidder, to "provide the brand name, specification, schedule of delivery and construction, and price" for the metal buildings. IBC reasons that one is only a contractor after one has been selected to build the project. However, the first three lines of the Bid Form are:

Hence, the bid form uses the term "contractor" to refer to any bidder, and the bidder takes on the designation "contractor" when it fills its name in on the blank. In the sense urged by IBC, any bidder who filled in the blank would achieve "contractor" status and become the contract awardee. Accordingly, IBC may not rely on the use of "contractor" in section 13.2 of the Bid Form in order to conclude that the building brand name and specifications were to be provided post bid.

In addition to failure to provide the building brand name and specifications, the March 15, 2000 letter, faxed to IBC on March 17, 2000, cited IBC's failure to provide sports complex experience for key staff, IBC, and IBC's designated architect as reasons why IBC's bid was rejected. The letter also cited the failure to provide "[m]echanical engineer experiences." IBC urges that "[n]o where in the bidding documents did it state that bidders, their key staff, architects or mechanical engineers, were required to have or demonstrate `sports complex experience.'" Final Argument at 15. As to its architect and engineer, IBC asserts that such information did not have to be provided until after the award of the contract, although it contends that it did provide "substantial information regarding the project experience of its selected architect" Id. at 15-16. As to the qualifications of IBC's key personnel, IBC contends that Public Works may not now rely on IBC's failure to submit curricula vitae for its key staff people as a reason for rejecting the bid, because Public Works did not rely on this deficiency when it notified IBC of its rejection. (The discussion of the new reason is combined below with the discussion regarding key staff's sports complex experience.) Lastly, IBC asserts that any issues involving IBC's qualifications had to be addressed pre-bid, under 9 Y.S.C. 524, and cannot constitute a basis for rejection of the bid.

The bidder to whom a contract for public work is to be awarded, under a provision that such contracts shall be let to the lowest responsible bidder, is one who is responsible and the lowest in price on the advertised basis. . . . The term "responsible" as thus used is not limited in its meaning to financial resources and ability. . . . [A]uthorizations of this kind are held to invest public authorities with discretionary power to pass upon . . . [the bidder's] experience and his facilities for carrying out the contract, his previous conduct under other contracts, and the quality of his previous work. . ., and when that discretion is properly exercised, the courts will not interfere.

Item number 6 under the Qualification Statement which IBC was required to submit as part of its bid package begins with the heading, "LIST FIRM'S RECENT (LAST FIVE YEAR'S) PROJECTS," and requires the bidder to provide "a brief description of each including: dollar value of Firm's portion of work; total project value; contract period; compliance with quality control, contract time, and agreed budget; and accidents or near-misses on the project." Public Works could require IBC to submit this information. As previously noted, 9 Y.S.C. 527 provides that in addition to the names of any joint or subcontractors and the work they will do, "[a]ll bids . . . shall include . . . any other [materially] relevant information the contracting officer may require" (emphasis added). The immediately preceding section, § 526, provides in pertinent part that "[a]ny bid which does not comply with the requirements of the advertisement or other provisions of this chapter shall be rejected." It follows that Public Works had specific statutory authority for requiring IBC to submit information about its business experience, and that this information was a relevant factor in determining whether IBC was the "lowest responsible bidder" for the Yap Sports Complex within the meaning of 9 Y.S.C. 502(c).

IBC's contention that its bid could not be rejected for lack of specific sports complex experience is to lose sight of the rationale for requiring the submission of information about IBC's experience in its field ) the reason being, self-evidently, to allow Public Works to evaluate IBC's business experience in order to determine its suitability for the specific project at hand. In this case that could mean, and did mean, sports complex experience. Public Work's determination that IBC lacked such experience was the conclusion that followed from its review of the information submitted. To accept, as IBC urges, that Public Works could not reject IBC's bid for lack of sports complex experience would be to allow the bidder, not Public Works, to set the parameters for Public Works's evaluation of the information about itself that IBC submitted.

In the blanks following the response to item number 6, IBC filled in, "SEE ATTACHED `CORPORATE PERFORMANCE'." This twenty-one page document lists well over 100 substantial projects. However, as to sports related projects, there are none within the last five years, which was what the statement was designed to elicit. Prior to 1995, there are four references: a 1987 reference to "Recreational Facilities (park)"; a 1987 reference to "Additions to Recreation Building"; a 1988 reference to "Construction of Tennis Court"; and a 1991 reference to "Two Basketball Field Lighting." Under 10 Y.S.C. 165 this "court may not substitute its judgment for that of the agency," in this case Public Works, and must give "appropriate weight to [Public Work's] experience, technical competence,

and specialized knowledge." Candidly, IBC appears to this court's mind to be capable of executing the project ) or at least it has a business history of impressive construction projects. But that is exactly the point, or perhaps more precisely, not the point. On the record before the court, it is not for this court to second-guess Public Work's determination that IBC's sports complex related experience was insufficient to qualify IBC as the lowest responsible bidder under 9 Y.S.C. 502(c). Calcutta E. Coast of India & E. Pakistan/U.S.A. Conf. v. Federal Maritime Comm'n, 399 F. 2d 994, 996 (D.C. Cir. 1968) ("A court has no warrant to set aside agency action as arbitrary or capricious when those words mean no more than that the judge[] would have handled the matter differently had [he] been [an] agency member.")

Giving "appropriate weight to [Public Work's] experience, technical competence, and specialized knowledge" as this court must do under 10 Y.S.C. 164(b), the court cannot conclude that Public Work's rejection of IBC's bid was "[a]rbitrary, capricious or characterized by abuse of discretion" in contravention of 10 Y.S.C. 165(f) where the rejection cited a lack of IBC's sports complex experience as a basis for the rejection, and where information regarding IBC's projects during the last five years was required as part of the bid submission.

IBC contends that just as Public Works could not rely on an absence of sports complex experience on the part of IBC as a reason for rejecting the bid, it could also not rely on key staff's lack of sports complex experience as a reason for rejecting the bid. Further, IBC urges that Public Works is now citing a basis for rejection that it did not rely upon in its March 15, 2000, letter by now asserting that IBC' failure to submit curricula vitae for its key employees was also a reason for rejecting IBC's bid. As these contentions are interrelated, the court treats them together.

The sports complex experience of IBC's key personnel was materially relevant information that Public Works could require under 9 Y.S.C. 527 for purposes of evaluating IBC's bid. Further, § 3.2 of the Qualification Statement provides that "`[f]ull curriculum vitae's [sic] shall also be provided for the following personnel: Construction Superintendent; Construction Manager(s); Quality Control Officer; Health & Safety Manager; and Laboratory Manager." The introductory paragraph of the Qualification Statement also provides that "[a]ll sections are to be completed. Failure to provide any of the information may result in rejection of the bid by the Contracting Officer."

"Curriculum vitae" is defined as "a short account of one's career and qualifications prepared typically by an applicant for a position." Webster's Ninth New Collegiate Dictionary 316 (1983). The purpose of the curricula vitae was to provide information regarding the qualifications of the key personnel, including sports complex experience. Public Work's determination that key staff lacked experience in constructing a sports complex went to the substance of the information required to be provided by the curricula vitae. In this respect, the missing curricula vitae were not a "new or different reason[] for rejecting IBC's bid." Final Argument at 16.

Accordingly, whether citing to failure to provide the curricula vitae, or the lack of sports complex experience itself, Public Works properly relied on failure to provide sports complex experience for key personnel when it rejected IBC's bid, where the substance of the information contemplated by the curricula vitae was required as part of IBC's bid submission.

The form that IBC was required to submit for itself was the Qualification Statement. Item number 6 on IBC's form, as previously discussed, required information about IBC's professional experience. Also, item number 5 of the Qualification Statement required IBC to list its subcontractors, of which there were four. IBC's bid contains, for each subcontractor, the form entitled "Designer's Qualification Statement." This form differs from the Qualification Statement, in that it is shorter, and does not require the listing of prior work projects, although the form ends with the note, "The owner reserves the right to request additional information about the Designer's qualifications. The contractor shall furnish additional information, as requested, to the owner within 14 calendar days of the owner's request."

Three of IBC's designated subcontractors did submit information regarding their professional experiences, one as part of a form bearing the legend, "Standard Form 255," and two as part of a form bearing the legend, "Standard Form 254." Notwithstanding that information was submitted, the court has not been able to locate any requirement in the 336 pages of the bid documents which mandate the submission of this form, whether it be Standard Form 254 or 255. The court concludes that the professional experience of the subcontractors was not required under the terms of the bid documents themselves, nor is there any evidence before the court that submission of the standard forms is the customary practice. This is borne out by the fact that, as IBC points out, section 1.18.B of the General Information section of the Contract Documents and Specifications provides that post bid, the bidder "will be required to establish to the satisfaction of the Contracting Officer and Owner the reliability and responsibility of the proposed subcontractors to furnish and perform the Work." This required information goes to the issue of the subcontractor's professional experience as documented by the projects undertaken and completed by the subcontractor.

The court therefore concludes that IBC was not required to provide this information as part of its bid submission. As such, failure to do so was not properly a basis for the rejection of IBC's bid. At the same time, Public Work does assert three valid bases for rejecting the bid. Section 526 of title 9 provides that "[a]ny bid which does not comply with the requirements of the [bid] advertisement or other provisions of this chapter shall be rejected," and specifically the introductory paragraph to the bidder's Qualification Statement makes it clear that "[f]ailure to provide any of the information may result in rejection of the bid by the Contracting Officer." The materially relevant information required under any one of the three valid criteria upon which the bid was rejected was "relevant information the contracting officer may require" under 9 Y.S.C. 527 and was therefore a sufficient basis upon which Public Works could reject the bid.

Accordingly, the fact that two of the bases for rejection ) failure to provide sports complex information for IBC's architect and engineer ) were not sufficient, standing alone, to support rejection of IBC's bid, is not a basis for this court to disturb Public Work's rejection of IBC's bid where other independently sufficient bases for rejection existed.

Before any prospective bidder may be entitled to submit a bid for the performance of a contract covered by section 521 of this chapter, he shall, not less than ten calendar days prior to the date designated for opening bids, give written notice to the contracting officer of his intention to bid, and such officer shall satisfy himself of the prospective bidder's financial ability to perform the work intended and of his experience and competence in performing similar work. Whenever it appears to the contracting officer that the prospective bidder is not fully qualified and able to perform the intended work, the contracting officer shall refuse to receive or consider any bid offered by the prospective bidder. Upon being determined not to be fully qualified, a prospective bidder may appeal this determination within ten days after notice of disqualification in accordance with the State Administrative Procedure Act, Yap State Law No. 1-90.

The purpose of this section is straightforward. It permits Public Works to determine, pre-bid, whether a bidder is financially credible, and has the experience generally necessary to perform the intended work. Public Works does not contend that as of the time it was notified of IBC's intention to bid, it did not consider IBC such a credible entity. The court emphasized in its prior orders of March 28, 2000, and April 3, 2000, that IBC's general qualifications within the meaning of 9 Y.S.C. 524 are not at issue in this case. However, the conclusion does not follow that Public Works could not require that IBC provide, as part of its bid package, additional information regarding the qualifications of those specific individuals within IBC's organization who would be working on the project. An entity capable of the scope of work required by the Yap Sports Complex is comprised of numerous individuals, and it was reasonable and rational for Public Works to request information about the specific people within IBC's organization who would come to Yap and undertake this sizable project. Nor does it follow that failure to provide such information about key personnel, or the failure to provide information regarding an acceptable level of experience on the part of IBC, could not stand as a basis for the bid rejection.

Section 527 of title 9 provides that "[a]ll bids on construction project contracts shall include . . . any . . . relevant information the contracting officer may require" (emphasis added). This section makes it clear that Public Works could require "any relevant information" as part of the bid, which is submitted after the evaluation procedure set out in § 524. Reading § 527 together with § 524, this court cannot conclude that Public Works was required to solicit the information about IBC's key personnel before the bid. When the information was not provided as part of the bid as required by the bid form, Public Works could rightfully reject the bid.

2. Section 528 of Title 9 provides two options in the event the lowest bid is rejected: "the contracting officer may, at his discretion, award the contract to the lowest remaining responsible bidder or advertise anew for bids pursuant to section 525 of this subchapter. Instead of "advertising anew" in the event that negotiations with Black did not bear fruit, Mr. Yatilman proposed rescinding the rejection of IBC's bid, and conducting negotiations with IBC. The question whether the proposed manner of proceeding would have passed muster under 9 Y.S.C. 528 is not now before the court, and the court does not decide the point.

3. In addition to these specific references, there are numerous addition sections, not limited to the following, that deal with various systems which necessarily implicate the structures themselves: section 15271, "Piping, Valves & Specialities [sic]"; section 15440, "Plumbing Fixtures"; section 15780, "Air Conditioners"; section 16000, "Electrical"; section 16050, "Basis Electrical Materials & Methods"; section 16060, "Grounding and Bonding"; and section 16302, "Underground Transmission & Distribution." These sections run to 51 single spaced pages of text.

Work includes a normal electrical connection including low-voltage main service equipment, motor control centers, 480 to 208/120 v transformers, distribution panel boards, panel boards, feeders, grounding of services and system, telephone system, conduits, pull boxes, outlets, cover plate, fire alarm system, music and announcing system, vent fans, hands dryers, hot water heaters, and heavy duty centrifugal fans. The building will have an engineered electrical system of 480-volt, three phases, 208 volt, single phase, and 120-volt single-phase electrical service.

The standing seam roof panel shall be precision roof-formed to provide 24" net coverage from 22-gauge, 50,000 PSI minimum yield steel. The panel edges shall join together to form a 21" high box rib with a 7/8" high standing seam. The seam shall be a machine-closed, double lock (360 degrees) design with factory-applied sealant. The panel flats shall be embossed with cross ribs at 6" o/c. to minimize oilcan and flutter. The panel ends shall be factory-notched for end splicing (when required). Panels shall be longest length possible (44'-6" maximum) to minimize end splices. The panels shall be secured to the structure with concealed clips designed to accommodate the roof expansion/contraction and to provide a 1" insulation standoff. Perimeter trim, start/finish panes, ridge cover and transition flashing shall be provided and shall be designed to accommodate the roof's expansion/contraction. Closures, sealants, and fasteners shall be provided as required for a weather-tight installation.