Hawaiian Dredging Construction Company, Inc. v. Nan, Inc.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2022
10:02 AM
Dkt. 52 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

HAWAIIAN DREDGING CONSTRUCTION COMPANY, INC.,
Intervenor-Appellant-Appellee,
v.
NAN, INC., Petitioner-Appellee-Appellant,
and
BOARD OF WATER SUPPLY,
Respondent-Appellee-Appellee,
and
DESIREE L. HIKIDA, HEARINGS OFFICER,
OFFICE OF ADMINISTRATIVE HEARINGS,
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS,
STATE OF HAWAI#I, Appellees-Appellees

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

OCTOBER 31, 2022

BY: GINOZA, C.J., AND WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

In 2021, Respondent-Appellee-Appellee Board of Water
Supply (BWS) invited bids for a project to construct a concrete
reservoir (Project). After receiving a bid from Petitioner-
Appellee-Appellant Nan, Inc. (Nan), BWS determined that Nan was a
"nonresponsible" bidder for the Project (i.e., not capable of
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

fully performing the contract requirements) and that BWS would
not consider Nan's bid. BWS awarded the contract to Intervenor-
Appellant-Appellee Hawaiian Dredging Construction Company, Inc.
(Hawaiian Dredging). Nan submitted a request for administrative
review (Request for Review) of BWS's decision to the Office of
Administrative Hearings (OAH), Department of Commerce and
Consumer Affairs. After briefing and a hearing, the Hearings
Officer vacated BWS's determination of Nan's "nonresponsibility"
and ordered that BWS's contract award to Hawaiian Dredging be
terminated. Hawaiian Dredging appealed the Hearings Officer's
decision to the Circuit Court of the First Circuit (Circuit
Court),1/ and BWS joined the appeal. After further briefing and a
hearing, the Circuit Court directed the Hearings Officer to set
aside her decision and to enter an order containing a directive
reinstating the contract award to Hawaiian Dredging.
Nan appeals from the September 17, 2021 Judgment,
entered in favor of BWS and Hawaiian Dredging (collectively,
Appellees) by the Circuit Court. Nan also challenges the Circuit
Court's September 17, 2021 "Findings of Fact, Conclusions of Law,
and Order Granting . . . Hawaiian Dredging['s] . . . Application
for Judicial Review, Filed August 18, 2021, and [BWS's]
Substantive Joinder to Hawaiian Dredging's Application for
Judicial Review, Filed August 19, 2021" (FOFs/COLs/Order).
On appeal, Nan contends that the Circuit Court erred:
(1) in finding that Nan's Request for Review was based on the
content of the bid solicitation (Solicitation), such that the
Hearings Officer lacked jurisdiction to consider Nan's request;
(2) in ignoring the Hearings Officer's finding that she "can find
no language, nor can [BWS] or [Hawaiian Dredging] point to any
part of the Solicitation that clearly requires bidders to provide
specific [Horizontal Directional Drilling] experience"; and (3)
in granting deference to BWS and failing to determine whether
BWS's actions were consistent with the Hawai#i Procurement Code.
We hold that the Circuit Court did not err: (1) in
ruling that the Hearings Officer lacked jurisdiction to consider

1/
The Honorable Jeffrey P. Crabtree presided.

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Nan's Request for Review to the extent the request challenged the
validity and appropriateness of the experience requirements set
forth in the Solicitation; and (2) in exercising jurisdiction
over that part of Nan's Request for Review that was not based on
the contents of the Solicitation, i.e., Nan's claim that BWS
improperly determined that Nan was a nonresponsible bidder based
on an HDD experience requirement that was not stated in the
Solicitation. We further hold that the Circuit Court correctly
concluded that: (1) the Solicitation required bidders to submit
their HDD experience or its equivalent; and (2) BWS did not act
arbitrarily or capriciously in determining that Nan was a
nonresponsible bidder.
Accordingly, we affirm the Judgment.

I. Background

On April 7, 2021, BWS issued an Invitation for Bids and
accompanying solicitation documents for the Project (the
Solicitation or IFB) through the Hawaii eProcurement System
(HePS). As stated in the Solicitation, the work of the Project
involves the installation of a 24-inch water main and reservoir;
repaving and reconstruction at the installation area; and, among
other things, horizontal directional drilling (HDD) beneath an
existing stream for the new water main.
The Solicitation's "Special Instructions" on HePS
stated that bidders were required "to read and comply with . . .
other documents or specifications for the [S]olicitation whether
attached or referenced." The same Special Instructions also
stated that the "[S]olicitation contains attachments that bidders
must . . . [d]ownload[,] . . . [c]omplete[,] . . . and, [a]ttach"
to their bids; and that bids "shall be evaluated" based on those
documents.
The Solicitation included Section SP-1, Instructions to
Bidders (SP-1), and several other referenced or attached
documents, including "General Instructions to Bidders" and a
"Contractor Questionnaire." The General Instructions to Bidders
and the Contractor Questionnaire were linked attachments to the
Solicitation on HePS.

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Section 1.1(C) of the General Instructions to Bidders
reflected BWS's intent to determine bidder responsibility based
on the Contractor Questionnaire:

Qualification Questionnaire. The Contracting Officer shall
determine whether the bidder or prospective bidder has the
financial ability, resources, skills, capability, and
business integrity to perform the work intended. For this
purpose, the Contracting Officer may require any bidder or
prospective bidder to submit answers, under oath, to
questions contained in a questionnaire prepared by the
Contracting Officer. If upon review of the questionnaire or
otherwise, the bidder or prospective bidder appears not to
be fully qualified or able to perform the intended work, the
Contracting Officer shall, after affording the bidder an
opportunity to be heard and if still of the opinion that the
bidder is not fully qualified to perform the work, refuse to
receive or to consider any bid offered by the prospective
bidder. Failure to complete the questionnaire will be
sufficient cause for the Contracting Officer to disqualify a
bidder.

(Emphases added.)
In turn, the Contractor Questionnaire set out specific
responsibility criteria, as follows:

Section 3-122-108 of the Hawaii Administrative Rules
provides that a determination of responsibility or
non-responsibility of an Offeror or prospective Offeror to
perform the work called for in the solicitation shall be
made by the procurement officer on the basis of available
information. It is the sole responsibility of the Offeror
to review the requirements of the Contractor Questionnaire
and complete the required forms in their entirety, and
ensure all responses are legible. Offerors must use the
forms provided herein and provide the completed forms with
their bid.
By submitting the Contractor Questionnaire, the Offeror
guarantees the truth and accuracy of all statements and
answers provided.
The Board of Water Supply (BWS) reserves the right to verify
any of the information provided and/or request additional,
clarifying or supplemental information.

For the Contractor Questionnaire's "FACTOR 1:
EXPERIENCE," bidders were required to complete data sheets for
three to five contracts they performed that were equal or
equivalent to the Project's scope of work as defined in SP-1.
Under SP-1, the Project's scope of work included providing
"Horizontal Directional Drilling beneath existing stream for new
water main."
Bidders were instructed to raise any concerns about the
Solicitation's terms or requirements before bid opening. Section

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1.2 of the General Instructions to Bidders stated, in relevant
part:

If it should appear to a prospective bidder that the
performance of the work under the contract or any of the
matters relative thereto is not sufficiently described or
explained in the Invitation for Bids, or that any
discrepancy exists between different parts of the Invitation
for Bids, or that the full intent of the Invitation for Bids
is not clear, then the bidder shall submit a written email
request for clarification not later than ten (10) calendar
days before the date fixed for opening of bids . . . ."

Nan submitted multiple questions to BWS, which were answered
through addenda to the Solicitation. Nan did not submit any
questions regarding BWS's responsibility criteria.
Nan submitted its bid on May 27, 2021, including the
Contractor Questionnaire and five data sheets. Nan's bid price
was the lowest among those submitted, but none of Nan's five data
sheets reflected experience in HDD.
Accordingly, on June 11, 2021, BWS sent a request to
Nan to provide a prior contract that included HDD experience.
In response, Nan provided a summary of a previous project that
included "microtunneling" installation.
By letter dated June 18, 2021, BWS informed Nan that it
determined Nan was nonresponsible, because it "lacks the required
experience and is not fully qualified and able to perform the
intended work." The letter further stated, in part:

While the five projects showed adequate experience working
with larger water mains and prestressed concrete reservoirs,
none of the projects included any relevant HDD-related work
experience.
On June 11, 2021, Nan was asked to submit one (1) additional
project Contract Data Sheet to satisfy the requirement of
equal or equivalent scope of work. Nan submitted one (1)
Contractor Questionnaire response amending their original
submission.
. . . .
BWS reviewed the additional information and determined that
micro-tunneling work was not equivalent to HDD-related work.
Therefore the additional contract information submitted by
Nan also failed to demonstrate equal or equivalent scope of
the Project as required to determine contractor
responsibility, thus rendering Nan non responsible.

Accordingly, although Nan submitted the low bid,
$18,570,704.70, it was disqualified from consideration for the

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contract award. The second-lowest bidder, Goodfellow Brothers,
LLC, whose bid was $20,636,745, was also disqualified. After BWS
applied all allowable bid evaluation credits, Hawaiian Dredging
(with a bid of $21,107,000) was deemed to be the lowest
responsive and responsible bidder, and entitled to the award. On
June 18, 2021, BWS awarded Hawaiian Dredging the contract for the
Project.
On June 25, 2021, Nan filed its Request for Review with
the OAH. On the same date, Nan filed a protest with BWS on the
same grounds. Prior to June 25, 2021, Nan did not file a protest
regarding the Solicitation.
Nan's Request for Review stated in part:

Nan files the instant request because, first, BWS is
required to make an award to the lowest responsive,
responsible bidder based on the criteria set forth in the
IFB. BWS improperly disqualified Nan's bid based on an
experience requirement not stated in the IBF [sic] and not
in conformance with the State law/procurement policy. To
the extent that the IFB does not set forth a specific
criteria, BWS is without any authority to create criteria
for evaluating a bid subsequent to bid opening. Secondly,
BWS' determination that Nan is non responsible was improper
and beyond what is legally permissible rendering its
decision, improper, arbitrary and capricious. . . .

Thus, Nan requests a decision by the Office of
Administrative Hearings, Department of Commerce and Consumer
Affairs, State of Hawaii ("OAH") to find and conclude the
following:

1. BWS improperly determined that Nan is not a
responsible bidder failing to properly follow Hawaii
law, the Hawaii procurement code, specifically HRS
§ 103D-310, and its own IFB Specifications;

2. The experience requirements in BWS' Contractor
Questionnaire and its June 11, 2021 Request inquired
into areas beyond what is legislatively permissible
and what was established by the Procurement Policy
Board's Qualification Questionnaire;

3. BWS wrongly awarded the Project to Hawaiian Dredging
when Hawaiian Dredging listed the same subcontractor
. . . as Nan to perform the HDD scope of work . . . ;
and
4. Nan is the lowest, responsible, and qualified bidder
under the IFB for the subject Project.
. . . .

. . . .
. . . At no time prior to bid opening, was it
required, by the IFB or the Contractor Questionnaire, that a

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prospective bidder submit its experience with respect to
HDD. . . .
. . . .

With this Request for Administrative Hearing, Nan also
seeks to expose a long-standing but unlawful practice of
requiring prospective bidders to show specific experiences
in regards to a bidder's responsibility to qualify to bid
and/or perform public works' projects. . . .

(Emphases added.)
In the administrative proceeding, on July 12, 2021, BWS
and Hawaiian Dredging filed motions to dismiss or, alternatively,
for summary judgment. On the same date, Nan filed a motion for
summary judgment. BWS and Hawaiian Dredging argued in part that
the OAH lacked jurisdiction over the matter because Nan's Request
for Review was untimely under HRS § 103D-701(a).2/ Specifically,
BWS and Hawaiian Dredging argued that Nan's protest was based
upon the content of the Solicitation, but was not submitted
within five working days after the Solicitation was issued, as
required by HRS § 103D-701(a). BWS and Hawaiian Dredging further
argued that Nan failed to present any issue of material fact that
BWS's determination of Nan's nonresponsibility was unreasonable,
arbitrary or capricious. Nan, on the other hand, argued that it
was not protesting the content of the Solicitation, but was
seeking "[to] hold BWS accountable to conduct its review based
solely on the criteria set for[th] in the IFB and for attempting
to disqualify Nan for a requirement not stated in the IFB."
On July 16, 2021, the Hearings Officer heard arguments
on the parties' dispositive motions. Following the arguments,

2/
HRS § 103D-701(a) (2012) states:

(a) Any actual or prospective bidder, offeror, or contractor
who is aggrieved in connection with the solicitation or
award of a contract may protest to the chief procurement
officer or a designee as specified in the solicitation.
Except as provided in sections 103D-303 and 103D-304, a
protest shall be submitted in writing within five working
days after the aggrieved person knows or should have known
of the facts giving rise thereto; provided that a protest of
an award or proposed award shall in any event be submitted
in writing within five working days after the posting of
award of the contract under section 103D-302 or 103D-303, if
no request for debriefing has been made, as applicable;
provided further that no protest based upon the content of
the solicitation shall be considered unless it is submitted
in writing prior to the date set for the receipt of offers.

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all parties agreed that there were no disputed issues of material
fact and that an evidentiary hearing was not necessary. At that
time, the Hearings Officer stated: "I am inclined at this point
to find that I don't have jurisdiction regarding the [Contractor
Q]uestionnaire and the use of it, but I do have jurisdiction
regarding the June 18th determination of nonresponsibility."3/
The Hearings Officer took the matter under advisement and said
she would issue a written decision on whether she would grant
"either motion for summary judgment."
On August 9, 2021, the Hearings Officer issued findings
of fact, conclusions of law and a final order granting Nan's
motion for summary judgment and denying BWS's and Hawaiian
Dredging's motions (Decision). The Decision stated in part:

The Hearings Officer can find no language, nor can [BWS] or
[Hawaiian Dredging] point to any part of the Solicitation
that clearly requires bidders provide specific HDD
experience. . . . Accordingly, the Hearings Officer
concludes there is no requirement in [the] Solicitation that
a bidder have HDD experience.

The Decision also concluded that "the use of the Contractor
Questionnaire to determine responsibility was improper[,]" and
further stated:

Even if the Hearings Officer determined [BWS] was justified
in using its Contractor Questionnaire, it is unclear why the
Contractor Questionnaire includes an additional requirement
not included in the Solicitation, specifically, requiring
bidders, rather than subcontractors, to demonstrate HDD
experience. Based on the foregoing, the Hearings Officer
concludes that [Nan's] appeal is not based on the Contractor
Questionnaire, per se, but rather on [BWS's] determination
of nonresponsibility using criteria allegedly not included

3/
During oral argument the following relevant exchange had occurred:

HEARINGS OFFICER HIKIDA: . . . [Nan's counsel], based
upon the arguments from [BWS's counsel] and [Hawaiian
Dredging's counsel], regarding the contractor questionnaire,
obviously jurisdiction is important. We are here to
determine first -- your position is that the use of the
contractor questionnaire was improper.

How is it that this is a timely vented (indiscernible)
issue given that the contractor questionnaire was issued
reportedly with the invitation for bids?
[Nan's Counsel]: Our argument is that determining
responsibility based on this questionnaire is improper. So,
it's a determination. It's how BWS evaluated the contractor
questionnaire and then determined responsibility. It's not
the contractor questionnaire itself that we're protesting.

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in the IFB. Accordingly, the Hearings Officer concludes
that [Nan's] protest was not a protest based on the content
of the Solicitation.

Nan's Request for Review was thus deemed timely.
Addressing the merits of Nan's request, the Hearings
Officer concluded that the Solicitation did not require bidder
HDD experience, and BWS's determination of nonresponsibility
based on Nan's failure to provide such experience was therefore
improper. Accordingly, the Hearings Officer vacated BWS's
determination of Nan's nonresponsibility and ordered that BWS's
contract award to Hawaiian Dredging be terminated.
On August 18, 2021, Hawaiian Dredging filed its
application for judicial review (Application) in the Circuit
Court, and on August 19, 2021, BWS filed its substantive joinder
to the Application.
The Circuit Court received briefing and conducted a
hearing on September 15, 2021. On September 17, 2021, the
Circuit Court issued the FOFs/COLs/Order, which included the
following COLs:

28. Under HRS § 103D-701(a), once a bidder knows or
should know of the facts causing it to be "aggrieved,"
including facts arising out of the content of the
solicitation, the bidder must submit a written protest
within five working days. In addition, protests based upon
the content of the solicitation must be submitted prior to
bid opening.
29. Nan's Request for Review was based on the content
of the Solicitation, which was released on April 7, 2021.
Accordingly, Nan's protest was due by April 14, 2021, but in
no event later than BWS'[s] May 27, 2021 bid opening.

30. Nan did not raise any issues about the content of
the Solicitation/IFB before the bids were opened.

31. Because Nan did not request the required
information be clarified or amended prior to bidding, Nan
cannot raise the issue after the bids are opened. By law,
the Hearings Officer lacked jurisdiction to consider the
issue.

32. An agency’s determination regarding a bidder's
responsibility "will be given wide discretion and will not
be interfered with unless the determination is unreasonable,
arbitrary or capricious." Browning-Ferris Industries of
Hawaii, Inc. v. State of Hawaii, Dept. of Transportation,
PCH-2000-4 at p. 11 (Jun. 8, 2000).

33. BWS therefore had the discretion to make the
decision that Nan was not a "responsible" bidder due to Nan
not submitting evidence of any prior contract or project
that involved HDD. This informed decision by BWS was not

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arbitrary or capricious and was entitled to deference under
our law.

Based on these conclusions, the Circuit Court remanded
the case to the Hearings Officer, directing her to set aside the
Decision and to enter an order in accordance with the
FOFs/COLs/Order. The Circuit Court specified that "[t]he order
shall include a directive reinstating BWS'[s] Award of the
Contract to Hawaiian Dredging."
This appeal followed.

II. Standard of Review

"The appellate standard of review of an administrative
hearings officer's decision is set forth in HRS § 103D–710(e)
(2012)." See Certified Constr., Inc. v. Crawford, 138 Hawai#i
315, 319, 382 P.3d 127, 131 (2016) (citing S. Foods Grp., L.P. v.
State, Dep't of Educ., 89 Hawai#i 443, 452, 974 P.2d 1033, 1042
(1999)). HRS § 103D–710(e) provides, in relevant part:

No later than thirty days from the filing of the application
for judicial review, based upon review of the record the
circuit court may affirm the decision of the hearings
officer issued pursuant to section 103D–709 or remand the
case with instructions for further proceedings; or it may
reverse or modify the decision and order if substantial
rights may have been prejudiced because the administrative
findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the chief procurement officer or
head of the purchasing agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion[.]

"The existence of jurisdiction is a question of law
that [this court] review[s] de novo under the right/wrong
standard." Crawford, 138 Hawai#i at 319, 382 P.3d at 131
(brackets omitted) (quoting Pac. Lightnet, Inc. v. Time Warner
Telecom, Inc., 131 Hawai#i 257, 272, 318 P.3d 97, 112 (2013)).

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III. Discussion

A. Jurisdiction of the Hearings Officer

Nan contends that the Circuit Court erred in concluding
that the Hearings Officer lacked jurisdiction to consider Nan's
Request for Review. Specifically, Nan argues that its June 25,
2021 Request for Review: (1) was based not on the content of the
Solicitation but on BWS's determination of nonresponsibility; and
(2) was timely filed within five working days of BWS's June 18,
2021 determination of nonresponsibility.
HRS § 103D-701(a) provides that "[a]ny actual or
prospective bidder, offeror, or contractor who is aggrieved
in connection with the solicitation or award of a contract
may protest to the chief procurement officer or a designee as
specified in the solicitation." Generally, a protest must be
submitted "within five working days after the aggrieved person
knows or should have known of the facts giving rise thereto[.]"
HRS § 103D–701(a). In any event, if the protest is from an award
decision, the protest must be submitted within five working days
after the posting of the award; if the protest challenges the
content of a solicitation, the protest must be submitted before
the date set for the receipt of offers. Id.; see Crawford, 138
Hawai#i at 319, 382 P.3d at 131. The latter deadline is
jurisdictional. See Crawford, 138 Hawai#i at 319-20, 382 P.3d at
131-32 ("With regard to challenges to the content of the
solicitation, the statute indicates the chief procurement officer
would not have jurisdiction to review the protest if the protest
was not submitted prior to the date set for offers to be
made[.]")
Here, after several postponements, the date set for the
receipt of offers, i.e., the "bid opening date," was May 27,
2021. By letter dated June 18, 2021, BWS informed Nan that BWS
had determined that Nan was nonresponsible and its bid would not
be considered. On June 25, 2021, Nan filed its Request for
Review in the OAH. Thus, for purposes of HRS § 103D-701(a), Nan
submitted its protest within five working days of BWS's
nonresponsibility determination, but not before the bid opening

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date. Whether Nan's Request for Review was timely under HRS
§ 103D-701(a) therefore depends on whether it is considered a
challenge to the nonresponsiblity determination or a challenge to
the content of the Solicitation. In other words, if the request
was based on the content of the solicitation, as the Circuit
Court ruled, the request was untimely and the OAH (and thus the
Hearings Officer) lacked jurisdiction to consider it.
In Crawford, the supreme court addressed the
distinction between a bid protest challenging the
disqualification of a bid and one challenging the contents of a
bid solicitation. 138 Hawai#i at 319-21, 382 P.3d 127, 131-33.
There, the County of Hawai#i notified a contractor that its bid
proposal on a public works project was disqualified because the
proposal failed "to list a C-44–Sheet metal subcontractor or to
describe an alternate means and methods by which the work
required of this project covered by this license class would
otherwise be legally executed." Id. at 317, 382 P.3d at 129.
The contractor submitted a protest letter to the county disputing
the contractor's disqualification and the rejection of its bid,
asserting that the sheet metal work required for the project
could be performed under the contractor's C-42 or C-44A licenses,
and nothing in the special notice referenced in the bid
solicitation strictly required a C-44 license. Id. The supreme
court ruled that the contractor's challenge was based on the
disqualification of its bid rather than the contents of the
solicitation. The court reasoned: "[Contractor's] protest does
not challenge or seek modification of the requirements of the Bid
Solicitation; rather it explains [Contractor's] interpretation of
the requirements of the Bid Solicitation and why it satisfied the
Bid Solicitation." Id. at 320, 382 P.3d at 132. The court
further explained:

The ICA majority concluded that [Contractor's] bid protest
was "based upon the content of the Bid Solicitation because
it necessarily challenges and seeks to omit material terms
of the Bid Solicitation," including Special Instruction #2.
However, [Contractor] did not seek to modify, erase, or
dispute the appropriateness of Special Instruction #2;
rather, it sought to challenge the disqualification of its
bid based on what it perceived as an erroneous
interpretation of Special Instruction #2 by the County.
Regardless of the actual meaning of Special Instruction #2

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and [Contractor's] compliance or noncompliance with that
term, [Contractor] did not seek a revision of any terms of
the Bid Solicitation. In other words, merely because a
protest implicates an interpretation of the bid
solicitation, it does not mean that it necessarily
challenges the contents of the bid solicitation. There is a
significant distinction between the contention that the
terms of a bid solicitation are invalid and the contention
that the terms of the solicitation are being misinterpreted
and thus misapplied.

Id. at 320-21, 382 P.3d at 132-33.
Here, Nan's Request for Review, fairly read, advanced
two sets of arguments. First, Nan argued that BWS improperly
determined that Nan was not a responsible bidder based on a
requirement of HDD experience that was not stated in the
Solicitation. For example, Nan alleged in part:

At no time prior to bid opening, was it required, by the IFB
or the Contractor Questionnaire, that a prospective bidder
submit its experience with respect to HDD. Section SP 29.4
of the IFB discussed the specifications of the HDD scope of
work for the Project. Nowhere in this section did it
discuss any prior experience criteria necessary to perform
this scope of work. The only responsibility criteria
required in the IFB specifications was that the contractor
submit qualifications for the HDD work force to BWS 60 days
prior to mobilization of any HDD equipment. Nan reasonably
relied on this language in the IFB, understanding that its
only responsibility as it related to HDD was after award and
60 days prior to the start of the HDD work. . . .

Second, Nan challenged the validity and appropriateness
of the experience requirements set forth in the IFB and the
Contractor Questionnaire. For example, Nan alleged:

• "The experience requirements in BWS'[s] Contractor
Questionnaire . . . inquired into areas beyond what is
legislatively permissible and what was established by
the Procurement Policy Board's Qualification
Questionnaire[.]"
• "Nan also seeks to expose a long-standing but unlawful
practice of requiring prospective bidders to show
specific experiences in regards to a bidder's
responsibility to qualify to bid and/or perform public
works' projects."
• "The legislature never intended and in fact never
authorized procurement officers from [sic]
establishing strict specific and arbitrary experience
requirements."

• "The instant Solicitation does not comport with HRS
§ 103D-310(b) nor HAR § 3-122-109 and goes well beyond
the legislative intent . . . ."
• "To add this [HDD] experience requirement . . . is
arbitrary and capricious in evaluating whether the
subcontractor who every prospective offeror listed,

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Island Mechanical Corporation, can perform the [HDD]
work."

Appellees focus on this second set of arguments in characterizing
the Request for Review as a challenge to the content of the
Solicitation. But that is only half the picture.
The first set of arguments challenged BWS's
nonresponsibility determination based on Nan's interpretation of
the Solicitation documents and Nan's related conclusion that the
documents did not require HDD experience. Regardless of the
actual meaning of the IFB and the Contractor Questionnaire, and
Nan's compliance or noncompliance with the documents' experience
requirements, this first set of arguments did not challenge or
seek revision of any terms of the Solicitation. See Crawford,
138 Hawai#i at 320, 382 P.3d at 132. While Appellees dispute
Nan's interpretation of the Solicitation documents and Nan's
alleged disregard of the documents' HDD experience requirements,
under Crawford, this dispute does not change the nature of this
part of Nan's protest – that it was determined to be a
nonresponsible bidder based on an HDD experience requirement that
was not stated in the Solicitation. See id. Nan's Request for
Review was thus timely as to this first set of arguments, which
was based on the disqualification of Nan's bid rather than the
content of the Solicitation.
In contrast, Nan's second set of arguments plainly
challenged the validity and appropriateness of the experience
requirements set forth in the IFB and the Contractor
Questionnaire. This set of arguments is readily distinguishable
from the protest in Crawford, which "d[id] not challenge or seek
modification of the requirements of the Bid Solicitation[.]" Id.
Here, by challenging the validity and appropriateness of the
experience requirements of the Solicitation, Nan challenged its
contents. If Nan believed that the experience requirements in
the IFB and the Contractor Questionnaire were unlawful or
otherwise inappropriate, then pursuant to HRS § 103D-701(a), Nan
was required to submit its protest within five working days of
the April 7, 2021 posting of the Solicitation, i.e., April 14,
2021, and in any event before the May 27, 2021 bid opening date.

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Nan did not do so.
The OAH has explained the purpose of this time
constraint as follows:

HRS § 103D-701 specifically requires that protests based on
the content of a solicitation be submitted prior to the date
set for the receipt of offers so as to minimize disruption
to procurement and contract performance. The requirement
was designed to provide governmental agencies with the
opportunity to correct deficiencies in the bid documents
early in the solicitation process in order to "minimize the
disruption to procurements and contract performance[".] The
possibility of having to reject all bids, cancel the
solicitation and resolicit may be avoided by requiring the
correction of such deficiencies prior to the bid submission
date.

Paradigm Constr. LLC v. Dept. of Hawaiian Home Lands, State of
Hawaii, PCH-2009-16, at 9 (Off. Admin. Hearings, Haw. Dep't Comm.
& Consumer Aff. Oct. 7, 2009) (citation omitted).
In this case, a timely protest by Nan would have given
BWS the opportunity to review the merits of the protest and amend
the Solicitation as appropriate or, if necessary, cancel the
Solicitation and resolicit the project with revised
responsibility or experience requirements. Alternatively, Nan
could have sought clarification of the experience requirements
related to the Contractor Questionnaire. Instead, Nan waited
until after it was determined to be a nonresponsible bidder and
the contract was awarded to Hawaiian Dredging before challenging
the experience requirements of the Solicitation. Under HRS §
103D-701, Nan's challenge to the validity and appropriateness of
these experience requirements was untimely. The OAH thus lacked
jurisdiction over that part of the Request for Review.
Accordingly, in its COLs 28 through 31, the Circuit
Court did not err in ruling that the Hearings Officer lacked
jurisdiction to consider Nan's Request for Review to the extent
the request challenged the validity and appropriateness of the
experience requirements set forth in the Solicitation. Moreover,
in COLs 32 and 33, the Circuit Court addressed the merits of
Nan's arguments that were not based on the contents of the
Solicitation, i.e., that BWS improperly determined that Nan was a
nonresponsible bidder based on an HDD experience requirement that
was not stated in the Solicitation.

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For the reasons discussed above, the Circuit Court did
not err in exercising jurisdiction over this part of Nan's
Request for Review.

B. The Solicitation's HDD Experience Requirement

Nan contends that the Circuit Court erred in ignoring
the Hearings Officer's "finding of fact" that she "can find no
language, nor can [BWS] or [Hawaiian Dredging] point to any part
of the Solicitation that clearly requires bidders to provide
specific HDD experience." Relatedly, Nan appears to challenge
FOF 15, in which the Circuit Court stated:

15. To summarize:

a. The Solicitation included SP-1, which in its
Scope of Work specifically included the specific
and separate item of HDD (beneath a stream).
b. The Solicitation documents specifically included
a Contractor Questionnaire, which expressly
stated that bidders shall provide information
about 3-to-5 prior performed contracts.
"Relevant" contracts were defined as contracts
that were "equal or equivalent" to the SP-1
Scope of Work for the instant Project.
c. The Contractor Questionnaire and SP-1 are part
of the Solicitation. Accordingly, the
Solicitation required bidders to submit their
HDD experience or its equal or equivalent.

As a threshold matter, Nan incorrectly characterizes
the Hearings Officer's conclusion of law — that she "can find no
language [in] the Solicitation" that requires bidders to provide
HDD experience — as a finding of fact. The interpretation of a
bid solicitation, like the interpretation of a public contract,
is a question of law that is reviewed de novo. See Provident
Funding Assocs. v. Gardner, 149 Hawai#i 288, 296, 488 P.3d 1267,
1275 (2021) ("The construction and legal effect to be given a
contract is a question of law freely reviewable by an appellate
court." (quoting Balogh v. Balogh, 134 Hawai#i 29, 37, 332 P.3d
631, 639 (2014))); Found. Int'l, Inc. v. E.T. Ige Constr., Inc.,
102 Hawai#i 487, 494-95, 78 P.3d 23, 30-31 (2003) (same, applied
to a public contract); see also VS2, LLC v. U.S., 155 Fed. Cl.
738, 759 n.17 (2021) ("Interpretation of [a bid] solicitation is
a question of law that is reviewed de novo." (quoting Per

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Aarsleff A/S v. U.S., 829 F.3d 1303, 1309 (Fed. Cir. 2016)
(internal quotation marks omitted))); NVT Technologies, Inc. v.
U.S., 370 F.3d 1153, 1159 (Fed. Cir. 2004) (bid protest action:
"The interpretation of a contract or solicitation is a question
of law which we review de novo." (citing other Federal Circuit
cases)).
For this reason, the Circuit Court's FOF 15 is also a
conclusion of law, inasmuch as the court was construing the
Solicitation documents in determining that the Contractor
Questionnaire and SP-1 were "part of the Solicitation[,]" and the
Solicitation required bidders to submit their HDD experience or
its equal or equivalent. It thus appears that the Circuit Court
determined that the Hearings Officer erred in concluding that
"there is no requirement in [the] Solicitation that a bidder have
HDD experience."
The Circuit Court was correct. As the Hearings Officer
found, the Contractor Questionnaire was an attachment to the
IFB,4/ the Contractor Questionnaire required bidders to submit
experience on three to five contracts that were equal or
equivalent to the Project's scope of work,5/ and the scope of work
described in the IFB (per SP-1) included HDD.6/ The Solicitation

4/
In the Decision, the Hearings Officer found: "[A]ttached to the
IFB are the following file attachments: Job 21-053A Contractor Questionnaire
. . . ." Decision, FOF 3 (formatting altered); see id. FOF 6 ("The Contractor
Questionnaire attached to the IFB . . . .").
5/
In the Decision, the Hearings Officer quoted the following
language in the Contractor Questionnaire:
FACTOR 1: EXPERIENCE

A Contract Data Sheet (Attachment 1) shall be completed for
a minimum of three (3) and maximum of five (5) contracts
performed that are equal or equivalent to this project's
scope of work as defined in SP-01 Instruction to Bidders,
including but not limited to BWS projects.

Decision, FOF 6.
6/
In the Decision, the Hearings Officer quoted the following
language from the IFB, SP-1, Instructions to Bidders:

1. SCOPE OF WORK:
A. Transmission Main

. . . .
continue...

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thus required bidders to submit their HDD experience or its equal
or equivalent. Nevertheless, the Hearings Officer decided
otherwise, apparently based on the conclusion that the Contractor
Questionnaire was not part of the Solicitation.7/
The Hearings Officer erred in concluding that the
Contractor Questionnaire was not part of the Solicitation. The
Solicitation's Special Instructions on HePS stated that the
"[S]olicitation contains attachments that bidders must . . .
[d]ownload[,] . . . [c]omplete[,] . . . and, [a]ttach" to their
bids; and that bids "shall be evaluated" based on those
documents.8/ The General Instructions to Bidders and the
Contractor Questionnaire were linked attachments to the IFB. In
addition, the General Instructions to Bidders made clear that BWS
intended to determine bidder responsibility based on the
Contractor Questionnaire. Based on the plain language of the
Solicitation and accompanying instructions, the Circuit Court
correctly concluded that the Contractor Questionnaire was part of
the Solicitation. The Hearing Officer erred in concluding

6/
...continue
f. Provide Horizontal Directional Drilling beneath
existing stream for new water main.
Decision, FOF 5.
7/
This conclusion necessarily follows from statements made in the
Decision, including:
• "Even if the Hearings Officer determined [BWS] was
justified in using its Contractor Questionnaire, it is
unclear why the Contractor Questionnaire includes an
additional requirement not included in the
Solicitation . . . ."
• "In this case, [BWS] deemed [Nan] nonresponsible for
failing to provide HDD-related work experience in
response to the Contractor Questionnaire. The
Solicitation does not require bidder HDD experience."
8/
See State v. Hawaiian Dredging Co., 48 Haw. 152, 174, 397 P.2d
593, 606 (1964) ("Incorporation by reference makes the subject matter referred
to as much a part of that which incorporates it as though set forth therein at
full length."); Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1428 (9th Cir. 1986)
(applying Hawai#i law: "When a document incorporates outside material by
reference, the subject matter to which it refers becomes part of the
incorporating document just as if it were set out in full.").

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otherwise.9/
Similarly, based on the plain language of the
Solicitation, including Section SP-1 and the Contractor
Questionnaire, the Circuit Court correctly concluded that the
Solicitation required bidders to submit their HDD experience or
its equal or equivalent. The Hearings Officer erred in
concluding otherwise.10/

C. BWS's Discretion in Determining Bidder Responsibility

Citing Browning-Ferris Industries of Haw., Inc. v.
State of Haw., Dept. of Transp., PCH-2000-4, at 11 (Off. Admin.
Hearings, Haw. Dep't Comm. & Consumer Aff. June 8, 2000), Nan
acknowledges that a procuring agency should be given "wide
discretion" in determining a bidder's responsibility, and that
the agency's determination "will not be interfered with, unless
[it] is unreasonable, arbitrary or capricious." Nan contends,
however, that the Circuit Court erred in "grant[ing] deference"
to BWS and failing to determine whether BWS's actions were
consistent with the Hawai#i Procurement Code. Relatedly, Nan
challenges COL 33, in which the Circuit Court concluded:

33. BWS . . . had the discretion to make the decision
that Nan was not a "responsible" bidder due to Nan not
submitting evidence of any prior contract or project that
involved HDD. This informed decision by BWS was not
arbitrary or capricious and was entitled to deference under
law.

Nan appears to argue that BWS acted arbitrarily and capriciously
based on a "contrived reading of the Solicitation" that was not
intended by the legislature.
For the reasons discussed above, we have determined
that the Solicitation required bidders to submit three to five
prior contracts involving equal or equivalent work to that of the

9/
To the extent this conclusion – that the Contractor Questionnaire
was not part of the Solicitation – can be viewed as a mixed issue of fact and
law, it is clearly erroneous. In this regard, we also note that in the
administrative proceeding, BWS submitted an uncontested declaration by its
Procurement and Specifications Specialist that the Contractor Questionnaire
was "part" of the Solicitation.
10/
To the extent this conclusion – that the Solicitation did not
require bidders to submit their HDD experience or its equal or equivalent –
can be viewed as a mixed issue of fact and law, it is clearly erroneous.

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Project. BWS's reading and implementation of these experience
requirements was not "contrived," arbitrary or capricious. To
the extent that Nan is challenging the validity of the
Solicitation's experience requirements as contrary to legislative
intent, the Hearings Officer lacked jurisdiction to consider that
issue, for the reasons previously discussed.
Nan does not otherwise appear to challenge the Circuit
Court's conclusion that BWS did not act arbitrarily or
capriciously in determining that Nan was not a responsible bidder
due to its not submitting evidence of any prior contract or
project that involved HDD. Indeed, Nan asserts that "[t]he issue
here is not whether Nan is a responsible bidder." Accordingly,
the Circuit Court correctly concluded that BWS's
nonresponsibility determination was not arbitrary or capricious.

IV. Conclusion

For the reasons discussed above, we affirm the
September 17, 2021 Judgment, entered by the Circuit Court of the
First Circuit.

On the briefs:

Wyeth M. Matsubara and /s/ Lisa M. Ginoza
Micah P.K. Aiu Chief Judge
for Petitioner-Appellee-
Appellant.
/s/ Clyde J. Wadsworth
Keith Y. Yamada and Associate Judge
Jeffrey M. Osterkamp
(Cades Schutte LLP)
for Intervenor-Appellant- /s/ Sonja M.P. McCullen
Appellee Associate Judge

David J. Minkin and
Jordan J. Kimura
(McCorriston Miller Mukai
MacKinnon LLP)
for Respondent-Appellee-
Appellee

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