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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lakloey, Inc. v. University of Alaska (05/18/2007) sp-6124

Lakloey, Inc. v. University of Alaska (05/18/2007) sp-6124, 157 P3d 1041

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

LAKLOEY, INC., )
) Supreme Court No. S- 11950
Appellant, )
) Superior Court No.
v. ) 4FA-04-01172 CI
)
UNIVERSITY OF ALASKA, ) O P I N I O N
)
Appellee. ) No. 6124 - May 18, 2007
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Raymond M. Funk, Judge pro tem.

          Appearances:  John J. Connors, Law Office  of
          John   J.   Connors,  P.C.,  Fairbanks,   for
          Appellant.  Aimee Anderson Oravec, Law Office
          of Aimee A. Oravec, Anchorage, for Appellee.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.

I.   INTRODUCTION
          Lakloey, Inc. appeals a decision of the superior  court
affirming the University of Alaska Fairbankss denial of  Lakloeys
protest of a University procurement award.  Because we agree with
Lakloey  that  it:  (1) has sufficient standing as an  interested
party,  and (2) has raised an issue of fact requiring a  hearing,
we  reverse  the decision of the superior court and  remand  this
case to the University.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  April  18, 2003, the University of Alaska Fairbanks
(UAF) published an Information for Bid, (IFB) soliciting bids for
a  one-time  purchase  of  a Continuous  Deionization  LX  System
(deionization  system).   The IFB indicated  that  UAF  sought  a
specific  brand name model or equal.1  It explained that  a  non-
brand  name model would be considered equal to the specific brand
name model only when in the opinion of the procurement officer, .
. . [it] fulfill[ed] the salient characteristics set forth in the
purchase  description,  and  UAF  [could]  reasonably  anticipate
sufficiently  similar quality, capacity, durability, performance,
utility  and  productivity.  The IFB then  went  on  to  describe
twelve technical and formal specifications that a non-brand  name
model would need to meet in order to be deemed equal to the brand
name model.  Bids were scheduled to be opened on May 9, 2003.
          On  May  1,  2003,  Lakloey, Inc., a potential  bidder,
submitted  a  written  request to UAF for additional  information
about  the  desired technical specifications of the  deionization
system.   The  next day, UAF responded to Lakloeys  request  with
Amendment   No.  1.   This  amendment  provided   a   number   of
clarifications  to the original IFB, including information  about
the  quality  of water that would be going into the  deionization
system,  the  desired flow rate of the system,  and  the  desired
quality  of  the  finished water coming out of the  system.   The
amendment also rescheduled the bid opening date to May 13,  2003.
All   bidders   were  required  to  acknowledge  the   amendments
clarifications prior to this new bid opening date.2
          UAF  received its first bid on May 7, 2003.   Over  the
next  week,  UAF  received  five more bids,  including  one  from
Lakloey.  On May 13 all six of these bids were opened, and it was
determined  that Delta Industrial appeared to have submitted  the
lowest bid.  Because Delta Industrials bid was not for the  brand
name  model specified in the IFB, UAF requested and conducted  an
internal evaluation of the bid and offered model.  On May 15  UAF
determined  that the model bid by Delta Industrial did  not  meet
four  of  the  twelve  specifications required  by  the  IFB  and
consequently  concluded that the bid was technically unacceptable
and  non-responsive.  This conclusion left U.S. Filter as the low
bidder,  Frontier  Plumbing  Supply as  the  second  lowest,  and
Lakloey as the third lowest.
          Although  U.S. Filter, the lowest bidder, had placed  a
bid  for  the brand name model specified in the original IFB,  it
had  failed  to  acknowledge Amendment No. 1  prior  to  the  bid
opening  date.  On May 20 UAF contacted U.S. Filter and asked  it
to  verify  that [its] bid was submitted with the intention[]  of
complying solely with the terms and conditions listed within  the
IFB.   On  May  23 U.S. Filter verified that its bid  was  indeed
submitted solely in compliance with [these] terms and conditions.
That  same day, UAF drafted a Memorandum of Selection, indicating
that the Delta Industrial bid was non-responsive and recommending
that the contract be awarded to U.S. Filter.  Four days later, on
May  27,  UAF issued a Notice of Intent to Award the contract  to
U.S. Filter.
     B.   Proceedings
          On  May  30, 2003, Lakloey mailed UAF a written protest
of  the Universitys intent to award the contract to U.S. Filter.3
This protest was brief.  It stated:
          This is a protest of the Notice of Intent  to
          Award of the referenced solicitation (IFB No.
          03B0018DH).
          
          According to the information provided by your
          office,  the  bid  of U.S.  Filter  Corp  was
          clearly  non-responsive.  In their  bid  they
          did not acknowledge Amendment #1.
          
          Amendment  #1 was a material change  in  both
          the   contract  conditions  of  quality   and
          quantity.
          
On  June  2 UAF issued a letter notifying all interested  parties
that  it  had  received  a protest of its  intent  to  award  the
contract  to  U.S. Filter and that the protest had been  received
within  the prescribed ten-day notice period.4  Four days  later,
on  June  6,  the Director of Purchasing for UAF denied  Lakloeys
protest.   Although  the Director admitted that  Lakloey  was  an
interested  party with standing to protest the  award,  he  found
Lakloeys protest to be without merit.
          On  June 9, 2003, Lakloey sent a second letter  to  UAF
entitled  Appeal  of Denial of Protest.  This second  letter  was
much  longer than Lakloeys initial protest and raised a  host  of
detailed  arguments.  Among these arguments was a reiteration  of
Lakloeys  initial assertion that Amendment No. 1 was  a  material
change   to   the  IFB  that  established  objective  performance
standards  [that]  became  obligatory to  all  bidders  upon  its
issuance.   On  June  17  the Chief Procurement  Officer  of  UAF
acknowledged receipt of Lakloeys second letter and stated that he
had  asked  the  Director of Purchasing  to  complete  a  protest
report.  He also noted that he intended to hire Roger Brunner  as
his  advisor and that Brunner would also serve as hearing officer
if a hearing [became] necessary.
          On  June 27, 2003, the Director of Purchasing filed the
requested protest report.  In this report, UAF reversed itself on
the issue of Lakloeys standing.  The report reasoned that Lakloey
did  not  in  fact  have standing because, as  the  third  lowest
bidder,  Lakloey would not receive the contract even if  it  were
withdrawn  from U.S. Filter and therefore did not have  a  direct
economic interest in the outcome of its protest.  The report then
went on to conclude that, even if Lakloey did have standing,  its
protest  would  still fail because:  (1) Lakloeys initial  letter
did not request a specific form of relief as required by statute,5
and  (2) Lakloeys initial letter did not establish that Amendment
No.  1  was  a  material change that U.S. Filter was required  to
acknowledge.6  The protest report also described Lakloeys  second
letter  to  UAF  as  an appeal and deemed a number  of  arguments
raised for the first time in this letter to have been waived.
          On  June 30, 2003, the Chief Procurement Officer  wrote
to  Lakloey  and  notified it that it had ten days  in  which  to
          respond to the protest report.  In a letter dated July 5, Lakloey
responded  to  the  protest report.  In  this  response,  Lakloey
disputed  the  protest  reports assertion  that  it  was  not  an
interested party, argued that its second letter was not an appeal
but  a  detailed explanation of the basis of its initial protest,
and  reiterated its argument that Amendment No. 1 was a  material
change  to the IFB.  On July 14 UAF issued a rebuttal to Lakloeys
response to the protest report.  On July 22 the Chief Procurement
Officer  sent  a  letter to Lakloey, formally accepting  Lakloeys
appeal  and confirming that Brunner had been engaged to serve  as
the  [Chief Procurement Officers] advisor for this matter and  as
hearing officer if a hearing is conducted.
          On  September  8, 2003, Brunner  the Chief  Procurement
Officers  advisor as well as hearing officer  sent  a  letter  to
Lakloey  that concluded there are no contested issues of material
fact  and  therefore  . . . a hearing is not required.   Enclosed
with  this letter was a proposed draft decision denying  Lakloeys
appeal  for essentially the same reasons outlined in the  protest
report.    The  hearing  officer  stated  that  he  would   delay
submitting  this draft decision to the Chief Procurement  Officer
until  September 17 to allow Lakloey and UAF a chance to  comment
upon or object to the decision.
          On September 13, 2003, Lakloey responded and maintained
that  there  were  contested issues of  material  fact  and  that
Lakloey was therefore entitled to an administrative hearing.   In
response, on October 23, the hearing officer wrote to Lakloey and
UAF  to  set  up a status hearing, the purpose of  which  was  to
discuss  in more detail the issues of material fact which Lakloey
claims exist[], and what evidence Lakloey would expect to present
on  those  issues  if a hearing were held.  This  status  hearing
eventually  took  place on November 14.   At  the  close  of  the
hearing,  the  hearing officer articulated that he  had  not  yet
decided whether a full hearing was appropriate.
          On  December 19, 2003, the hearing officer wrote to UAF
and  Lakloey  to  request briefing solely on  the  issue  of  the
timeliness of Lakloeys two protest letters and whether its second
letter  was  an appeal.7  According to this letter,  the  hearing
officer would not . . . get into the issues of whether the  water
quality  being  fed to the machine was as stated or  whether  the
brand  name performs as stated.  On December 24 Lakloey  wrote  a
letter to the hearing officer indicating that it still wanted  an
administrative hearing on the other issues of fact.  On  December
30  Lakloey  submitted its brief and materials on  the  issue  of
timeliness.  In its brief, Lakloey argued that its second  letter
was not an appeal but a detailed document to support the protest.
On  January 16, 2004, UAF submitted its brief and materials.  The
hearing  officer  held a hearing on the issue  of  timeliness  on
April 14, 2004.
          About  a  week  after  the  hearing  on  the  issue  of
timeliness,   the  hearing  officer  issued  a  second   proposed
decision.   In  this  decision, the hearing  officer  found  that
Lakloeys  second, more detailed protest letter was an appeal  and
any  issues  presented for the first time  in  that  letter  were
therefore  waived  as untimely.  The decision  then  went  on  to
          explain that this waiver left Lakloey with only one contested
issue:  whether  U.S.  Filters bid is non-responsive  because  it
failed  to  acknowledge Amendment No. 1.  The  decision  reasoned
that  UAF has the discretion to overlook minor informalities when
an  amendment is immaterial, with only [a] negligible  effect  on
price,  quantity,  quality or delivery.  It then  concluded  that
Amendment  No. 1 was immaterial and that UAF properly  overlooked
U.S.  Filters  failure  to acknowledge  it.   The  decision  also
reiterated that Lakloey did not have standing to file  a  protest
and  that no hearing was necessary because there were no disputed
issues  of  material fact.  The decision rejected the  contention
that Lakloeys original protest was void for failure to request  a
form of relief.  On April 28, 2004, the Chief Procurement Officer
formally adopted this proposed decision in its entirety.
          On  May  27,  2004, Lakloey appealed  to  the  superior
court.  On April 22, 2005, the superior court issued a memorandum
decision  on  appeal  in which it held that Lakloey  was  not  an
interested party eligible to protest the bid and, even if  it  is
an interested party, Lakloeys rights were not violated.
          Lakloey now appeals.
III. STANDARD OF REVIEW
          When  the  superior court is acting as an  intermediate
court  of  appeal  in an administrative matter, we  independently
review  the merits of an administrative boards decisions.8   When
reviewing the merits of an agencys decision, we apply one of four
different standards of review:  (1) the substantial evidence test
applies  to  questions  of fact; (2) the  reasonable  basis  test
applies  to questions of law involving agency expertise; (3)  the
substitution of judgment test applies to questions of  law  where
no  expertise  is  involved;  and  (4)  the  reasonable  and  not
arbitrary test applies to questions about agency regulations  and
the agencys interpretation of those regulations.9
IV.  DISCUSSION
          Lakloey  raises  four primary issues  on  appeal:   (1)
whether  Lakloey is an interested party with standing to  protest
the  contract award; (2) whether Amendment No. 1 was  a  material
amendment  to  the  IFB; (3) whether Lakloey is  entitled  to  an
administrative  hearing; and (4) whether Lakloey is  entitled  to
its bid preparation costs.
     A.   Lakloey Has Standing as an Interested Party.
          Alaskas   general   procurement   code    codified   at
AS  36.30.005.995  transfers purchasing authority to the  Regents
of  the  University of Alaska and requires the Regents  to  adopt
purchasing  regulations.10  This authority is to be exercised  in
accordance   with   the   general   procurement   codes    rules,
requirements, and procedures to the maximum extent possible.11  In
fulfilling  this  responsibility, the Regents have  retained  the
general procurement codes requirement that a bidder have standing
as  an  interested party in order to file a protest of a contract
award.12  As defined by Board of Regents Policy P05.06.990(a)(7),
an interested party is an actual or prospective bidder or offeror
whose  economic  interest  might be  affected  substantially  and
directly by the issuance of a contract solicitation, the award of
a  contract, or the failure to award a contract.  This definition
          mirrors the general procurement codes definition of an interested
party, but omits the codes explanation that whether an actual  or
prospective bidder or offeror has an economic interest depends on
the   circumstances.13   In  sum  then,  both   the   Universitys
regulations  and  the  general procurement code  require  UAF  to
determine  whether Lakloeys economic interests might be  affected
substantially and directly by the outcome of its protest.
          Although   UAF  did  not  initially  question  Lakloeys
standing, it later reversed course and concluded that Lakloey did
not  in  fact  satisfy the requirement that it be  an  interested
party.   The final decision issued by UAFs hearing officer  noted
that  Lakloey  was not the next lowest bidder after U.S.  Filter,
and  would not have received the award, even if U.S. Filters  bid
had  been  disallowed.  The decision then went on to reason  that
because Lakloey would not receive the award if its protest proved
successful,  it  did not have an economic interest  that  may  be
substantially and directly affected by the award of the  contract
or  failure  to  award it.  Consequently, the decision  concluded
that   Lakloey  [did]  not  have  standing,  under  the  specific
circumstances  here, as an interested person.    On  appeal,  UAF
maintains  that this decision and line of reasoning are  correct.
Lakloey responds that its status as a bidder who placed a bid for
the deionization system is sufficient to establish that it is  an
interested party in this case.
          We  begin  our  analysis  by  noting  that  the  proper
standard  of  review  to  apply to  this  issue  is  not  readily
apparent.   It  is unclear whether UAF believes that  it  is  the
general  procurement  codes provisions  or  the  Universitys  own
regulations  that require Lakloey to be the next  lowest  bidder.
The  final decision issued by UAFs hearing officer cited only the
general  procurement code; on the other hand, the brief filed  in
this  case by UAF  while still focused primarily upon the general
procurement  code   cites both the code and the  Universitys  own
regulations.   It is equally unclear whether such  a  distinction
between  law and regulation is of any significance in  this  case
since,  as  already noted, the general procurement  code  demands
that   the  Universitys  regulations  mirror  the  codes   rules,
requirements,  and  procedures to the maximum extent  possible.14
Because  we  conclude  that  UAFs interpretation  of  the  phrase
interested party, which requires that Lakloey be the next  lowest
bidder,   is   unreasonable  even  under  the  more   deferential
reasonable  and  not  arbitrary test reserved  for  reviewing  an
agencys  interpretation  of  its own  regulations,  we  need  not
resolve these ambiguities here.15
          We have previously noted that in exchange for a bidders
investment of the time and resources involved in bid preparation,
a  government  agency  must  be held to  an  implied  promise  to
consider  bids  honestly and fairly.16  In other words,  agencies
implicitly guarantee potential bidders that their expenditures of
time  and resources on bid preparation will not be wasted  on  an
unfair or dishonest bidding process.  Bidders undoubtedly possess
an  economic  interest  in  ensuring  that  agencies  honor  this
implicit guarantee, and it is this interest that Lakloey seeks to
vindicate.
          From  its  initial protest to its current  appeal,  the
core  of  Lakloeys argument has been that Amendment No. 1  was  a
material change to the IFB and that U.S. Filter did not recognize
or  meet  the  demands  of Amendment No. 1.   More  specifically,
Lakloey  contends that Amendment No. 1 established specifications
that exceeded the capabilities of the brand name model identified
in  the original IFB and that U.S. Filters bid for the brand name
model  was  therefore non-responsive.  If Lakloeys contention  is
correct,  then  UAF may have breached its guarantee  to  consider
bids  fairly and honestly by awarding the contract to U.S. Filter
by  assessing  the  responsiveness of bids based  upon  incorrect
criteria, accepting a product markedly different from the one  it
asked  for,  and  ultimately wasting the time  and  resources  of
bidders who could have potentially chosen to offer a less capable
product  at a better price or chosen not to bid at all.   Lakloey
certainly has an economic interest in ensuring that its  bid  was
honestly  and  fairly  considered  and  its  time  and  resources
expended on placing that bid not wasted.
          Of  course,  standing to file a protest  requires  more
than  an  economic  interest  in ensuring  that  the  procurement
process  was fair and honest.  Under both the general procurement
code  and  the Universitys regulations, a bidder must possess  an
economic  interest  that  might  be  affected  substantially  and
directly  by  the  outcome  of  its  protest.   As  the   general
procurement code notes, whether or not a bidder possesses such an
interest  is necessarily dependent upon the circumstances,17  and
the circumstances of this case dictate that Lakloey is indeed  an
interested party with standing to protest.
          UAF  determined that five of the six bids submitted for
the  deionization  system were administratively  and  technically
responsive to the requirements laid out in the IFB and  Amendment
No.  1.   Out of these five responsive bids, UAF determined  that
U.S.  Filter  was  the low bidder, Frontier Plumbing  Supply  the
second  lowest, and Lakloey the third lowest.  The final decision
issued by UAFs hearing officer reasoned that because Lakloey  was
determined to be the third lowest responsive bidder, it would not
receive the contract even if its protest proved successful.  As a
result,  the  opinion  concluded that Lakloey  did  not  have  an
economic  interest in the outcome of its protest.  But  the  very
nature of Lakloeys argument precludes this conclusion.
          Lakloey  asserts  that  UAF ignored  Amendment  No.  1s
heightened  specifications and evaluated  the  responsiveness  of
U.S.  Filters  bid using the wrong criteria.  Assuming  that  UAF
used  the same criteria in evaluating all of the bids  and  there
is  nothing  in  the  record to suggest that  it  did  not   then
Lakloeys  assertion  calls into question  the  responsiveness  of
every  bid  submitted.  Until it is determined what criteria  and
specifications UAF used in evaluating the bids, it is  impossible
to  know the proper ordering of the bids.  If Lakloey prevails on
its  protest and the award to U.S. Filter is revoked, it may turn
out,  upon  application of the correct criteria, that the  second
lowest bidder is not in fact responsive.  This eventuality  would
place  Lakloey   which is currently understood to  be  the  third
lowest  bidder   as  the  low bidder.  In other  words,  Lakloeys
          economic interest might be affected directly and substantially by
the outcome of its protest.
          We  therefore  conclude that Lakloey is  an  interested
party  with  standing to protest UAFs award to U.S.  Filter.   Of
course,  this is not to say that UAF may never deny a  protesting
bidder  standing  because that bidder is  not  next  in  line  to
receive  the  contract.  There may in fact be many situations  in
which  it  would be entirely reasonable for UAF to deny a  bidder
standing  solely  on  this  basis.   Our  decision  today  merely
maintains  that the requirement that a protesting bidder  be  the
next  lowest  bidder  cannot  reasonably  be  applied  under  the
circumstances presented by this case.
     B.   Lakloey Is Entitled to a Hearing on the Merits.
          In  accordance with the general procurement  code,  UAF
awards  contracts  to  the  lowest responsive  bidder  whose  bid
conforms  in  all  material  respects  to  the  requirements  and
criteria  set  out  in the invitation to bid.18   Similarly,  the
University  of Alaska Procurement Manual maintains  that  a  bids
nonconformity  does not render that bid non-responsive  when  the
effect on price, quantity, quality or delivery is negligible  and
is   determined  by  the  procurement  officer  to  be  a   minor
informality.19   We  have  previously explained  that  a  bidders
nonconformity is material under the general procurement  code  if
it  gave  that  bidder  a substantial advantage  over  conforming
bidders.20   UAF  agrees that this is also the proper  test  with
regard to whether a bidders nonconformity is negligible under the
Universitys guidelines.21  As we have previously explained, we . .
.  review  an agencys determination of [a bidders] responsiveness
under the reasonable basis standard.22
          At  the  heart of Lakloeys protest lies the  contention
that  Amendment No. 1 represented a material amendment and worked
a material change to the IFB.  Underlying this central contention
is  Lakloeys  factual assertion that the amendment  establishe[d]
feed  water  [and other technical] requirements which  exceed[ed]
the  capabilities of the specific brand name model identified  in
the  initial  IFB.   As  a result, Lakloey argues,  U.S.  Filters
eventual  offer of the brand name model specified in the original
IFB  did not meet Amendment No. 1s requirements and was therefore
not responsive and should not have been awarded the contract.23
          The  final  decision  issued by  UAFs  hearing  officer
maintained that [t]he amendment added or clarified specifications
that other brands or models would have to comply with, but it did
not  affect any bids for the exact model specified [in the  IFB],
which already met those specifications.  Based upon this premise,
the  decision reasoned that Amendment No. 1 created no additional
burden  for U.S. Filter because it submitted a bid for the  exact
model specified.  Therefore, the decision concluded, U.S. Filters
failure  to  acknowledge  the  amendment  did  not  give  it  any
advantage  under  the circumstances.  Taken in  isolation,  these
portions  of the decision could be read as holding that  Lakloeys
factual assertions were simply untrue  that Amendment No.  1  did
not in fact require specifications for non-brand name models that
significantly exceeded the capabilities of the brand  name  model
specified in the original IFB.  However, throughout the course of
          the administrative process below, the hearing officer repeatedly
asserted that Lakloeys protest did not require the resolution  of
any  disputed factual issues, and the final decision  once  again
reiterated  that  Lakloeys appeal involved no genuine  issues  of
material fact.24  As a result, the hearing officers decision  can
only  be understood as holding the following:  even assuming  the
truth of Lakloeys factual assertions about Amendment No. 1,  that
amendment  did not as a matter of law affect bids for  the  brand
name model specified in the original IFB.
          But the original IFB noted that its identification of a
brand name model was merely a shorthand method of describing  the
standard  of quality, performance and characteristics [that  UAF]
desired.    Amendment  No.  1  subsequently  provided  additional
information about the technical specifications that UAF  desired.
Under  standard  contract law and the terms of the  original  IFB
itself,25  it is the last-in-time offer that prevails.   In  this
case,  it  was  Amendment No. 1 that was last-in-time,  and  that
amendment  and its specifications were therefore, as a matter  of
law,  the proper benchmark against which to measure each  of  the
bidders  responsiveness.  If Lakloey is  correct  that  Amendment
No.  1 required specifications that exceeded the capabilities  of
the  brand  name model specified in the original IFB,  then  U.S.
Filters bid for the brand name model may not have conformed  with
UAFs requirements and specifications, and that nonconformity  may
have provided U.S. Filter with a substantial advantage over other
bidders.
          In   the  end  then,  Lakloeys  protest  presents   two
questions:    (1)   did   Amendment  No.  1   contain   technical
specifications    that   exceeded   the   brand    name    models
specifications,   and,   if   so,  (2)   were   these   technical
specifications  so significantly different from  the  brand  name
models  specifications  as  to give  U.S.  Filter  a  substantial
advantage over bidders who conformed with the amendment.  Both of
these questions implicate technical factual issues,26 and Lakloey
is  therefore entitled to a hearing under the general procurement
code  and  the  Universitys own regulations.27  Consequently,  we
remand this case to UAF.28  Because we do not reach the merits of
Lakloeys  challenge, we do not decide whether Lakloey is entitled
to its bid preparation costs.
V.   CONCLUSION
          For  the  foregoing reasons we REVERSE the decision  of
the  superior  court  and REMAND to UAF for  further  proceedings
consistent with this opinion.

_______________________________
     1     The  IFB  stated that UAF sought a U.S.  Filter  Model
CDILX2404A4AB or equal.

     2     The  amendment stated:  This Amendment must be  signed
and  returned with your bid, or otherwise acknowledged, prior  to
the Opening Date and Time listed above.

     3     The  protest  letter was dated May 1,  2003,  but  the
parties  agree that the letter was incorrectly dated and actually
sent on May 30.

     4    Board of Regents (BOR) Policy P05.06.617(a) states that
a  protest  or  contract dispute shall be resolved in  accordance
with    the    provisions    of    AS   36.30.56036.30.699    and
P05.06.61705.06.695.  AS 36.30.565(a) provides, in relevant part,
that a protest based upon alleged improprieties in an award . . .
must  be  filed within 10 days after a notice of intent to  award
the contract is issued by the procurement officer.

     5    AS 36.30.560(5) states that a protest shall include the
form of relief requested.

     6     The Director of Purchasings protest report stated that
Amendment #1 provided clarifying information, but did not  change
the  brand name or equal item description of the solicitation  in
any  way.  As such, the protest report concluded, [f]or a  bidder
offering   the  exact  brand  name  product  specified   in   the
solicitation, return of Amendment #1 was a minor informality .  .
. [that] was waived by UAF.

     7     The  hearing officer stated he wanted briefing on  the
following issues:

          When  the  Notice of Intent  to  [A]ward  was
          issued  and  how it was sent to  Lakloey  and
          when it was received by Lakloey. When Lakloey
          filed its Protest and its Appeal and how they
          were  sent  to the University and  when  they
          were   received.  Any  other  relevant  dates
          regarding timeliness.
          
     8     Gunter  v.  Kathy-O-Estates, 87 P.3d  65,  68  (Alaska
2004).

     9     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     10    AS 36.30.005(c) provides, in relevant part:

          Notwithstanding other provisions of law,  all
          rights,   powers,   duties,   and   authority
          relating  to  the  procurement  of  supplies,
          services,    professional    services,    and
          construction and the disposal of supplies for
          the  University of Alaska are transferred  to
          the Board of Regents.
          
     11     AS  36.30.005(c) states the following: To the maximum
extent possible, authority granted under this subsection shall be
exercised in accordance with this chapter.

     12     BOR Policy P05.06.617(a) (stating that protests shall
be   resolved   in   accordance   with   AS   36.30.560.699   and
P05.06.617.695).

     13    The full text of AS 36.30.699 provides:

          [I]nterested   party  means  an   actual   or
          prospective bidder or offeror whose  economic
          interest  may  be affected substantially  and
          directly   by  the  issuance  of  a  contract
          solicitation, the award of a contract, or the
          failure  to  award  a  contract;  whether  an
          actual  or prospective bidder or offeror  has
          an   economic   interest   depends   on   the
          circumstances.
          
     14    AS 36.30.005(c); but see Gunderson v. Univ. of Alaska,
Fairbanks, 922 P.2d 229, 233 (Alaska 1996) (holding that, despite
AS  36.30.005(c),  the  appropriate standard  for  reviewing  the
decision  of  the Universitys chief procurement  officer  is  the
reasonable  basis  standard  rather  than  the  substitution   of
judgment standard).

     15    Were UAFs argument based solely upon its interpretation
of  the general procurement code, we would apply the substitution
of  judgment test.  As we have previously noted, standing in this
state  is a judicially created doctrine.  Bowers Office Products,
Inc.  v. Univ. of Alaska, 755 P.2d 1095, 1097 (Alaska 1988).   In
addition, it is a doctrine that the judiciary deals with on a day-
to-day basis in the course of carrying out its ordinary business.
As  such, the judiciary is particularly adept at determining  the
extent  of  injuries  suffered by or  the  general  interests  of
potential  litigants.  Nothing about this particular case  is  so
peculiar  as  to  cast  doubt upon the judiciarys  competence  to
decide  the  issue of standing or to bring the issue  within  the
sphere of UAFs expertise.  In short, whether Lakloey has standing
as an interested party under AS 36.30.005(c) is a question of law
that does not involve any agency expertise.

     16     King  v. Alaska State Hous. Auth., 633 P.2d 256,  263
(Alaska  1981); see also Laidlaw Transit, Inc. v. Anchorage  Sch.
Dist.,  118 P.3d 1018, 1025 (Alaska 2005) (noting that the  state
owed  all  bidders  a  fair  and honest  consideration  of  their
proposals) (citations omitted).

     17    AS 36.30.699.

     18    AS 36.30.170(a) (emphasis added).

     19    Section 5.2(c).

     20    Laidlaw Transit, 118 P.3d at 1032.

     21    BOR Policy P05.06.990(a)(8) takes a similar approach in
defining  minor informalities.  According to that  policy,  minor
informalities are insignificant matters that . . . can be  waived
or  corrected  without prejudice to other bidders or  matters  of
form rather than substance.

     22    Laidlaw Transit, 118 P.3d at 1032.

     23    Lakloey also raises two secondary arguments:  (1) U.S.
Filter should not have been permitted to amend its bid after  the
bid  opening, and (2) the procurement IFB and procurement process
amounted   to   an  inappropriate  brand  name  or  sole   source
specification.   However, these arguments were  first  raised  in
Lakloeys second protest letter, and there is substantial evidence
to  support  UAFs  determination that this  letter  was  untimely
except as an appeal.  These arguments, therefore, were waived.

     24    On appeal, UAF similarly maintains that Amendment No. 1
made  no  change  to the objective standards established  by  the
original IFB and that there were no contested issues of fact.

     25    The IFB provided the following: The University may make
modifications  within the general scope of this order  by  giving
notice  to  Seller and subsequently confirming such modifications
in  writing.   The IFB also noted that [i]t shall be the  bidders
responsibility to ascertain prior to submitting a bid that he/she
has  received all amendments issued and bidder shall  acknowledge
their receipt in the bid.

     26      For  instance,  determining  whether  the  technical
specifications in the amendment were significantly different from
the  brand  name  models specifications may raise  the  following
factual issues:  (1) the technical and practical effects that the
different specifications would have on the water quality, and (2)
the  price  difference  between  systems  meeting  the  different
specifications.

     27     AS  36.30.610(b) allows a decision on appeal to issue
without a hearing if the appeal involves questions of law without
genuine issues of fact.  BOR Policy P05.06.617(a) states  that  a
protest or contract dispute shall be resolved in accordance  with
the provisions of AS 36.30.56036.30.699 and P05.06.61705.06.695.

     28    Because we are convinced that a remand will resolve the
majority of potential due process issues raised by this case,  we
decline to reach Lakloeys due process arguments or decide whether
those  arguments have been waived.  Lakloey does, however,  raise
one  issue that gives us pause.  In its opening brief on  appeal,
Lakloey questions the propriety of the Chief Procurement Officers
employment  of  a  single attorney as both his  advisor  and  the
hearing  officer.  Although this dual employment raises concerns,
we  do  not  reach  the  issue for two reasons.   First,  Lakloey
concedes  in  its reply brief that this issue was not  raised  in
this  appeal  and is not before the court.  Second, UAF  has  the
opportunity on remand to employ a new hearing officer who has not
also acted as the Chief Procurement Officers advisor.

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