ORDER ON MOTION TO
TAKE ADDITIONAL EVIDENCE AND TO REMAND 80C APPEAL
Joyce A. Wheeler, Justice, Superior Court.
This matter is before the Court on the petition for review of final agency action pursuant to Rule 80C filed by Bayside I and Bayside II (Bayside). Bayside has filed a motion to take additional evidence and a motion to remand and requested expedited review of these matters. Bayside argues in its motion for remand that BGS erred in not conducting an appeal hearing on Bayside's appeal of an award for a lease for office space in Portland or South Portland for the Department of Health and Human Services (DHHS), the Department of Labor (DOL) and the Workers Compensation Board (WCB). Bayside further claims that as a matter of due process it was entitled to an independent and impartial review of the appeal. In short, Bayside claims it was denied as an unsuccessful bidder an opportunity for a meaningful appeal.
In its motion for additional evidence, Bayside seeks to take additional evidence on the following issues: (1) the adequacy of the administrative appeal conducted by BGS; (2) the failure of JetPort State Building, LLC (Jetport) to demonstrate an ownership interest in the parcel where the proposed office building is to be located; (3) the failure of Jetport to demonstrate legal access to the proposed site; (4) the scoring on the location of the proposed site; and (5) Jetport's inability to comply with the occupancy deadline of February 2015.
For the following reasons, the motions to remand and to take additional evidence are denied.
BGS issued Request for Proposals in July 2013 on behalf of DHHS, DOL and WCB for the lease of approximately 70, 000 square feet of office space in Portland or South Portland. The RFP stated that BGS would evaluate the submissions based on (1) location; (2) quality of the facility; (3) experience of the party making the submission; and (4) cost. The RFP provided that BGS reserved " [t]he right to reject any and all proposals." The RFP also provided that the lease would require occupancy of the office space between February 2015 and April 2015 and that the State would " consider a new facility, renovated facility, or a combination of new construction and renovated space in a single or multi-tenant facility." The objective of the State was to consolidate or co-locate the three agencies in a single facility. The RFP provided for a right of appeal.
Bayside submitted its timely proposal on September 20, 2013. BGS received four proposals and awarded the contract to Jetport that had proposed a new facility located in South Portland and was the highest rated bidder. Bayside had proposed locating the agencies in two buildings and was the lowest rated bidder. On October 23, 2013, BGS notified Bayside by letter that it had selected a proposal submitted by Jetport. This letter reiterated the right of appeal. Bayside filed on November 6, 2013 a timely appeal and requested an appeals hearing pursuant to Section 2(2) of 18-554 C.M.R. ch. 120. BGS's Director requested from William Leet, Director of Leased Spaces and one of the six individuals responsible for selecting the Jetport proposal to respond to Bayside's appeal and to provide (i) a copy of the RFP, (ii) the proposals submitted in response to the RFP and (iii) the RFP evaluation documents and notes of the reviewers. BGS's Director issued its decision denying the appeal on November 21, 2013. The State entered into a lease with Jetport on December 26, 2013.
1. Standard of Review
The Court will only review an agency decision " for errors of law, abuse of discretion, or findings of fact not supported by the record." Friends of Lincoln Lakes v. Bd. of Envtl. Prot ., 2010 ME 18, ¶ 12, 989 A.2d 1128 (quoting Save Our Sebasticook, Inc. v. Bd. of Entvl. Prot ., 2007 ME 102, ¶ 13, 928 A.2d 736). Where there is a question of statutory interpretation, the court reviews the decision for errors of law. Botting v. Department of Behavioral and Developmental Services , 2003 ME 152, ¶ 9, 838 A.2d 1168. The " primary purpose of statutory interpretation is to give effect to the intent of the Legislature." Gould v. A-1 Auto, Inc , 2008 ME 65, ¶ 10, 945 A.2d 1225 (citation omitted). The court interprets the plain language of the relevant statute if it is unambiguous. Here the language of the applicable statute is unambiguous.
2. Motion to Remand
Bayside asks that this court remand to BGS to conduct an appeal in accordance with 5 M.R.S.§ 1825-E and 18-554 C.M.R. ch. 120 or, in the alternative, to conduct an appeal involving an independent review of the BGS' s award decision concerning the RFP in this case. Bayside argues that it was entitled to a hearing on its appeal and at the very least; it was entitled to a meaningful appeal. Having adopted a competitive bid process in the RFP for the award of the contract, Bayside contends that BGS was required to comply with the terms of the RFP to ensure fairness among bidders. Bayside also argues that because the appeal language in the RFP mirrors the language in 5 M.R.S. § 1825-E and 18-554 C.M.R. ch. 120, the procedures should be consistent with this provision because the RFP did not define the appeal process. Section 1825-E provides that persons aggrieved by an agency contract award may request a hearing. Bayside states that it reasonably inferred that established appeal procedures of 5 M.R.S. § 1825-E and 18-554 C.M.R. ch. 120 would apply to this RFP. Bayside points out that BGS's regulations in ch. 120 require a hearing unless the Director makes certain determinations, none of which are relevant here. Further relying on BGS's regulations, Bayside argues that it would be entitled to present evidence of irregularities in the bidding and selection process creating fundamental unfairness in the award and that the hearing would be conducted before an appeal committee of three people. See 18-554 C.M.R. ch. 120 § 3.
Alternatively, Bayside states that BGS was still required to provide a meaningful appeal to aggrieved parties in accordance with the RFP and due process. The error here, according to Bayside, was not conducting an independent review and asking Mr. Leet, who participated in the selection process, to provide a written response to Bayside's appeal and rendering a decision one day latter solely based on Mr. Leet's response.
Bayside's reliance on 5 M.R.S. § 1825-E is misplaced because the operative provisions governing the location of leased spaces for State agencies are found in 5 M.R.S. § 1742-D. Moreover, the language of 5 M.R.S. § 1742-D is unambiguous, which means it is up to the court to interpret the plain language ...