ORDER ON RESPONDENT'S MOTION TO DISMISS
E. Mullen, Deputy Chief Justice.
Posture of the Case:
case is before this Court on Respondents' Motion to
Dismiss Petitioner's 80C Petition For Review Of Final
argument on Respondents' Motion To Dismiss was conducted
for October 5, 2016.
April 28, 2016, Petitioner Maine Behavior Health filed a
petition for review of final agency action pursuant to M.R.
Civ. P. 80C against Respondents Edward Dahl, Director, State
of Maine Bureau of General Services ("BGS");
Richard W. Rosen, Commissioner, Department of Administrative
and Financial Services; and Appeal Panel, State of Maine, RFP
#201506114, Crisis Mobil Resolution and Stabilization Unit
Services (the "Panel").
May 18, 2016, Intervenors Sweetser and The Opportunity
Alliance ("TOA") filed a joint entry of appearance
and statement of position requesting that this Court deny the
relief sought by Petitioner.
July 8, 2016, Respondents filed a Motion to Dismiss
Petitioner's petition, claiming that Petitioner lacks
July 20, 2016, Party-in-Interest State of Maine Department of
Health and Human Services ("DHHS") filed a
memorandum of interested party in support of Respondents'
Motion to Dismiss.
July 22, 2016, this Court granted Petitioner's unopposed
motion to extend the time for filing 80C briefs. Pursuant to
this Court's Order, Petitioner's 80C brief shall be
filed within 21 days after this Court issues its decision on
Respondents' Motion to Dismiss.
August 1, 2016, Petitioner filed an opposition to
Respondents' Motion to Dismiss.
August 9, 2016, Respondents filed a reply to Petitioner's
opposition to Respondents' Motion to Dismiss.
August 10, 2016, Sweetser and TOA filed a memorandum in reply
to Petitioner's opposition to Respondents' motion to
dismiss. Sweetser and TOA support Respondents' Motion to
the summer of 2015,  DHHS issued an RFP seeking proposals
to provide certain services as part of the State of Maine
Crisis Intervention System. (R. Vol. 1: Tab 1.) "The RFP
sought proposals for each of eight geographic districts
within the state, referred to as Districts 1 through 8.
Bidders were required to submit separate proposals for each
district in which they sought to provide the relevant
services." (Pet'r's Pet. ¶ 9.)
Petitioner and Sweetser each submitted proposals for
Districts 1, 2, and 4. (Pet'r's Pet. ¶ 13.) TOA
submitted a proposal for District 2. (Pet'r's Pet.
¶ 13.) DHHS granted conditional awards for Districts 1
and 4 to Sweetser and for District 2 to TOA. (Pet'r's
Pet. ¶ 15.)
Pursuant to 5 M.R.S. § 1825-E(2), Petitioner requested
an appeal hearing regarding the validity of the conditional
awards for Districts 1, 2, and 4, and Respondent Dahl granted
Petitioner's request. (Pet'r's Pet. ¶ 17.)
Sweetser and TOA were granted intervenor status in the appeal
proceedings. (Pet'r's Pet. ¶ 18.) Pursuant to 5
M.R.S. § 1825-E(3), BGS convened the three-member
Committee and appointed a hearing officer. (Pet'r's
Pet. ¶ 19.) Petitioner, DHHS, Sweetser and TOA all
participated in the appeal hearing held on March 4 and 7,
2016. (Pet'r's Pet. ¶¶ 20- 21.) Petitioner
argued before the Appeal Committee that multiple portions of
the RFP were legally invalid and that the method of scoring
the proposals was arbitrary and capricious. (Pet'r's
Pet. ¶ 23.)
Appeal Committee issued its decision to BGS on March 29,
2016. The Appeal Committee found that one section of the RFP
was "inconsistent" with RFP requirements, but that
the RFP was still valid. However, the Committee also found
that "[t]he proposals were scored in a manner that was
arbitrary and capricious, " and it invalidated the
awards on that basis.
April 15, 2016, DHHS "communicated to the bidders"
that it would rescore the previously submitted proposals
pursuant to the Appeal Committee's decision.
(Pet'r's Pet. ¶ 26.) On April 20, 2016,
Petitioner submitted a letter to BGS and DHHS requesting that
DHHS reissue the RFP rather than simply rescore the
previously submitted proposals. (Pet'r's Pet. ¶
27.) On April 26, 2016, DHHS "advised the bidders"
that it would continue with its plan ...