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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bachner Company, Inc. v. Weed (12/6/2013) sp-6848

Bachner Company, Inc. v. Weed (12/6/2013) sp-6848

        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,  email  

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



BACHNER COMPANY, INC. and                          )  

BOWERS INVESTMENT                                  )  

COMPANY,                                           )  

                                                   )        Supreme Court No. S-14629  

                          Appellants,              )  

                                                   )        Superior Court No. 4FA-04-266 CI  

         v.                                        )  

                                                   )        O P I N I O N  

JAMES WEED, JURANDA FAITH                          )
  

MADSON a/k/a JAN MADSON,                           )        No. 6848 - December 6, 2013
  

BRUCE SENKOW, AND JOHN                             )
  

BENNETT,                                           )
  

                                                   )  

                          Appellees.               )  

                                                   )  



                 Appeal from the Superior Court of the State of Alaska, Fourth  

                                                                          

                 Judicial District, Fairbanks, Michael McConahy, Judge.  



                 Appearances:  Michael C. Kramer, Kramer and Associates,  

                 Fairbanks, for the Appellants.  Janell M. Hafner, Assistant  

                 Attorney   General,   and   Michael   C.   Geraghty,   Attorney  

                 General, Juneau, for the Appellees.  



                 Before:  Fabe, Chief Justice, Stowers, Maassen, and Bolger,  

                             

                 Justices.  [Winfree, Justice, not participating.]  



                 BOLGER,  Justice.  



         I.      INTRODUCTION  



                 Unsuccessful  bidders  on  a  public  contract  proposal  filed  a  claim  for  



intentional interference with prospective economic opportunity against four individual  

                                


----------------------- Page 2-----------------------

procurement committee members.  The superior court found that the bidders failed to   



present a genuine issue of material fact regarding the committee members' alleged bad                                                  



faith conduct.  The superior court then held that the committee members were protected         



by qualified immunity and that the lawsuit was barred by the exclusive remedy statute.       



The court deemed the committee members prevailing parties and awarded attorney's fees   



to the State.  The bidders appeal.  



                        We affirm.  The bidders failed to present a genuine issue of material fact  



regarding the committee members' alleged bad faith.  In addition, the exclusive remedy  

                                                                                                                      



statute bars the bidders' suit.  The superior court did not abuse its discretion in awarding  



attorney's fees to the State.  



II.         FACTS AND PROCEEDINGS  



            A.          Facts  



                        Bachner Company and Bowers Investment Company (together, Bachner)  



were  unsuccessful  bidders  on  a  state  contract  ultimately  awarded  to  McKinley  

Development for an Alaska Department of Transportation office building in Fairbanks.1  

                                                                             



                                                                                                                  

The bids were scored by a procurement evaluation committee based on three criteria:  



(1) function, planning, and design (20 points); (2) appearance and indoor environment  



(ten points); and (3) public convenience (ten points).  Thus the committee could award  



a  total  of  40  points.    The  appellees  in  this  case  -  Jan  Madson,  James  Weed,  John  



Bennett, and Bruce Senkow - were members of this committee.  



                                                              

                        The committee used a three-pass scoring system.  In each pass, committee  



                                                                                                                                

members scored the proposals and then discussed the reasoning behind their scores.  In  



subsequent passes, committee members adjusted their scores based on the discussions  



from  the  previous  passes.    After  the  second  pass,  the  committee  also  visited  each  



proposed site.  



            1           See Weed v. Bachner Co., 230 P.3d 697, 698 (Alaska 2010).  



                                                                           -2-                                                                         6848  


----------------------- Page 3-----------------------

                   Separate  from  the  committee  scoring  process,  a  procurement  officer  



awarded ten additional points to bidders who qualified for the Alaska Offeror's/Bidder's  



Preference and up to 50 additional points for the proposal's price score.  The committee  

                                                                                                      



had no control over the Alaska preference or the price scores.  The committee's scores  



and the procurement officer's scores were then added together, and because McKinley  



had the highest score, it was awarded the lease.  



         B.        Proceedings  



                   In 2002, Bachner filed bid protests alleging irregularities in the bid scoring  



           2  

process.   Madson, the committee chairman, denied the protests and refused to stay the  



award.  Bachner appealed.  On appeal, a hearing officer found "grave deficiencies" in  



four of the five evaluations by procurement committee members and awarded Bachner  



                                         3  

its   bid     preparation        costs.         Ultimately,       we     affirmed       the     hearing      officer's  

                                                                                               

recommendation.4  



                   In 2004, Bachner filed a separate suit against four procurement committee  

                                                                        

members  as  individuals.5  

                                         Bachner's  complaint  asserted  a  claim  for  intentional  



interference  with  prospective  economic  opportunity,  alleging  that  the  procurement  

committee members failed to follow the required procedure for scoring bids.6  

                                                                                                              Bachner  



also asserted a due process claim against state officers, alleging deprivation of the right  

                                                                                                               



to contract under 28 U.S.C.  1983.  The complaint alleged that:  (1) Senkow and Bennett  

                                                                                         



     2        Id. ;   State,  Dep't  of  Admin.  v.  Bachner  Co.,  167  P.3d  58,  60  (Alaska
  



     2007).
  



     3        Weed, 230 P.3d at 698.
  



     4        Bachner Co. , 167 P.3d at 62.
  



     5        Weed, 230 P.3d at 699.
  



     6        Id.
   



                                                           -3-                                                    6848
  


----------------------- Page 4-----------------------

acted in bad faith by considering the site location even though it was not a permissible                 



evaluation criterion; (2) Senkow and Bennett acted in bad faith by refusing to adjust their     



scores  when  Madson  advised  them  that  they  could  not  consider  the  site  location;  



(3) Weed acted in bad faith by lowering his score of Bachner's bid because he thought  

                                      



other committee members were biased in favor of Bachner; and (4) Madson acted in bad  

                                                                                                           



faith by refusing to stay the contract award during Bachner's bid protest.  



                      The committee members moved to dismiss, arguing that:  (1) Bachner's  

                                                                            



claims  were  barred  by  the  exclusive  remedy  provisions  of  AS  36.30.690;  (2)  the  



committee members were entitled to absolute immunity; and (3) Bachner failed to state  

                                                            



a  1983 claim.  



                      The superior court dismissed Bachner's  1983 claim for failure to state a  



claim, but the superior court refused to  dismiss Bachner's state-law claim because it  

                                                                  



found that Bachner's allegations of bad faith, if proven, would fall outside the scope of  

                                                                                           

qualified  immunity.7  

                                    We granted the committee members' petition for discretionary  



review  and  affirmed  the  superior  court's  holding  that  the  committee  members  were  

                                          

entitled to qualified immunity but not absolute immunity.8  

                                                                                                



                      On   remand,  the  committee  members  reasserted  their  argument  that  



Bachner's state-law claim was barred by the exclusive remedy statute, but the superior  



court  denied  the  motion,  finding  that  the  scope  of  the  statute  was  co-extensive  with  

                             



qualified  immunity.    After  discovery,  the  committee  members  moved  for  summary  

                                                                                                                      



judgment,  reasserting  their  exclusive  remedy  argument  and  arguing  that  they  were  



protected by qualified immunity because Bachner failed to offer admissible evidence that  

                                                                                                      



could support an inference of bad faith.  Bachner opposed and cross-moved for summary  



      7         Id.  



      8         Id. at 698-704.  



                                                                   -4-                                                                 6848  


----------------------- Page 5-----------------------

judgment, arguing that the committee members' conduct demonstrated bad faith as a  

                 



matter of law.  



                    In December 2011, the superior court denied both of Bachner's motions and  

                                                                                                  



granted  the  committee  members'  motion  for  summary  judgment  based  on  qualified  



immunity and the exclusive remedy statute.  The court reasoned that Bachner presented  

                                                                                    



no genuine issue of material fact and that, as a matter of law, the committee members'  



conduct could not be considered bad faith.  Thus, the court held that qualified immunity  

                                                   



barred the suit.  



                    The court also concluded that the exclusive remedy statute barred the suit,  

                                                                                                   



but the court did not address whether the exclusive remedy provision extends to bad faith  

                                                                                                                       



conduct.  Bachner moved for reconsideration and moved to supplement the record with  



an affidavit, but the court denied both motions.  The court found the committee members  

                                                                                                      



were the prevailing parties and awarded the State $93,871.85 in fees and costs.  Bachner  

                                                                   



appeals.  



III.       STANDARD OF REVIEW  



                    We review a grant of summary judgment de novo, "reading the record in  

                                          



the light most favorable to the non-moving party and making all reasonable inferences  

                                                                                                   



                   9  

in its favor."   "Summary judgment is only appropriate when there is no genuine issue  

of material fact, and the moving party is entitled to judgment as a matter of law."10   "The  

                                                                                                                 



party opposing summary judgment must set forth specific facts showing genuine issues  

                                                                    



          9          Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003) (citing  



Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)); Alaska Civil  

                                                                                                                  

Liberties  Union  v.  State,  122  P.3d  781,  785  (Alaska  2005)  (citing  City  of  Kodiak  v.  

                               

Samaniego, 83  P.3d 1077, 1082 (Alaska 2004); Powell v. Tanner , 59 P.3d 246, 248  

                         

(Alaska 2002)).  



          10  

                                                                                            

                    Alaska  Civil  Liberties  Union ,  122  P.3d  at  785  (citing  Odsather  v.  

Richardson , 96 P.3d 521, 523 n.2 (Alaska 2004)).  



                                                                -5-                                                         6848
  


----------------------- Page 6-----------------------

and cannot rest on mere allegations; moreover, such facts must arise from admissible   

evidence."11               

                     "To  determine  whether  the  nonmoving  party  can  produce  admissible  



                                                                                    

evidence creating a genuine factual dispute, we will consider the affidavits, depositions,  

admissions, answers to interrogatories and similar material."12  



                  The proper interpretation of a statute presents a question of law that we  



                                                     

review de novo, "adopting the rule of law most persuasive in light of precedent, reason,  

and policy."13  



                                                                                                            

                  "A trial court's award of attorney's fees is generally reviewed for abuse of  

discretion."14  

                      "An  abuse  of  discretion  exists  if  an  award  is  'arbitrary,  capricious,  

manifestly  unreasonable,  or  the  result  of  an  improper  motive.'  "15  

                                                                                                The  trial  court's  

application of law in awarding attorney's fees is reviewed de novo.16  



IV.	     DISCUSSION  



         A.	      The  Superior  Court  Was  Not  Bound  By  Findings  From  Previous  

                  Administrative Proceedings.  



         11        Witt, 75 P.3d at 1033 (quoting Braun v. Alaska Commercial Fishing &   



Agric. Bank , 816 P.2d 140, 144 (Alaska 1991); Brady v. State , 965 P.2d 1, 8 (Alaska  

 1998) (internal quotation marks omitted)).  



         12       Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (quoting  Charles v.  



Interior Reg'l Hous. Auth ., 55 P.3d 57, 59 (Alaska 2002)).  



         13	      L.D.G., Inc. v. Brown , 211 P.3d 1110, 1118 (Alaska 2009).  



         14  

                             

                  Krone v. State, Dep't of Health & Soc. Servs. , 222 P.3d 250, 252 (Alaska  

2009) (citing Kellis v. Crites , 20 P.3d 1112, 1113 (Alaska 2001)).  



         15       Id. (quoting Reid v. Williams , 964 P.2d 453, 460 n.17 (Alaska 1998)).  



         16       Id. (citing Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001)).  



                                                         -6-	                                                   6848
  


----------------------- Page 7-----------------------

                       The superior court, citing State, Department of Health & Social Services  



                   17 

v. Doherty,   held that the findings from Bachner's previous administrative appeal could   



not be used against the committee members to create a genuine issue of material fact.                                      



On appeal, Bachner asserts that collateral estoppel should bar the committee members  



from  challenging  findings  from  the  administrative  appeal  because  the  committee  



members are in privity with the State of Alaska and their legal claims are identical.  The  

                                         



committee members respond that they are not in privity with the State.  



                       Collateral estoppel prohibits a party from relitigating an issue of fact if:  



                       (1) the party against whom the preclusion is employed was a  

                                                                       

                       party to or in privity with a party to the first action; (2) the  

                                  

                       issue  precluded  from  relitigation  is  identical  to  the  issue  

                                  

                       decided in the first action; (3) the issue was resolved in the  

                                       

                       first  action  by  a  final  judgment  on  the  merits;  and  (4)  the  

                       determination   of   the   issue   was   essential   to   the   final  

                                         [18] 

                       judgment.  



                       In Doherty , the element of privity was also the basis for denying collateral  



                                                                               

estoppel.  Doherty involved a  1983 claim against an Office of Children's Services  



                        19  

social worker.                                                                                

                             The appellants argued that the official was in privity with OCS because:  



                                                                                          

(1) the official's conduct was the central issue in the prior case; (2) the official had notice  



                                         

and  an  opportunity  to  be  heard  on  the  issues;  (3)  the  official  attended  the  trial  and  



testified;  (4)  many  of  the  prior  case's  factual  findings  were  based  upon  evidence  

presented by the official; and (5) the official controlled the presentation of evidence.20  



            17          167 P.3d 64 (Alaska 2007).  



            18         Id.  at 71 (quoting Powers v. United Serv. Auto. Ass'n , 6 P.3d 294, 297  



(Alaska 2000)).  



            19         Id. at 66-68.  



            20         Id. at 72.  



                                                                        -7-                                                                  6848
  


----------------------- Page 8-----------------------

                   However, in Doherty we recognized that, generally "employees acting in   



their personal capacities are not in privity with the government and are not bound by  

adverse determinations against the government."21  

                                                                           We explained:  



                    [A] non-party will be found to have been in privity with a  

                                                                                                  

                   party  to  a  prior  legal  proceeding  only  if  that  non-party  

                                                                                     

                    "(1)  substantially  participated  in  the  control  of  a  party's  

                   presentation in the adjudication or had an opportunity to do  

                                                                                                    

                    so; (2) agreed to be bound by the adjudication between the  

                   parties; or (3) was represented by a party in a capacity such  

                                                                [22] 

                    as trustee, agent, or executor."  



                                                                                             

We  concluded that the fact that the social worker testified and presented evidence did  



not mean that the social worker "had control over the litigation or the ability to pursue  

her  personal  interests."23  

                                         And  the  social  worker  "did  not  agree  to  be  bound  by  the  



                                                                                                                  24  

                                                                                                   

adjudication and was not represented by a party in a capacity such as trustee."                                       Thus,  



the social worker was "not afforded a full and fair opportunity to litigate the issues of  

fact."25  



                                                                                                         

                   Here, Bachner argues that the committee members are in privity with the  



                                                                                         

State because:  (1) the bid protests focused on the committee members' allegedly illegal  



actions;  (2)  the  committee  members  had  notice,  an  opportunity  to  be  heard,  and  



procedures protecting their interests in the administrative proceeding; (3) the Attorney  



General  adequately  represented  their  interests;  (4)  Madson  defended  the  committee  



          21       Id. at 73.  



          22       Id. (quoting Powers , 6 P.3d at 298).  



          23       Id.  



          24       Id.  



          25       Id.  



                                                             -8-                                                       6848
  


----------------------- Page 9-----------------------

members' actions during the hearing; and (5) Weed was advised to seek independent  

                             



legal counsel.  



                                                                                                                              26  

                    Bachner's  arguments  are  very  similar  to  the  arguments  in  Doherty .  



Bachner attempts to distinguish Doherty on grounds  that  Weed was advised to seek  



independent counsel.  But this distinction does not present a sufficient reason to deviate  

                                              



from the principle that committee members acting in their personal capacities are not in  

                                                                                                                   



privity with the government.  In this case, the committee members were not parties to the  

                                                              



bid protest proceeding; they did not control the litigation; they did not agree to be bound  

                                                                                            



by  its  outcome;  and  they  were  not  represented  by  counsel.    We  conclude  that  the  

                                 



committee  members  were  not  in  privity  with  the  State  for  the  purpose  of  collateral  



estoppel,  and  that  the  superior  court  was  therefore  not  bound  by  findings  from  the  



administrative proceeding.  



          B.        The Committee Members Are Protected By Qualified Immunity.  



                    The   procurement   process   requires   procurement   officers   to   exercise  



independent  judgment  and  avoid  conflicts  of  interest.    Procurement  officers  are  



encouraged to utilize their knowledge and experience and to discuss bids with each other  

                                



during the process.  We have held that qualified immunity protects procurement officials  

                                    

in the exercise of these duties.27  



                                                                                            

                    "Under  a  rule  of  qualified  immunity,  a  public  official  is  shielded  from  



liability . . . when discretionary acts within the scope of the official's authority are done  



                                                                      28  

                                                      

in good faith and are not malicious or corrupt."                           Thus, " 'malice, bad faith or corrupt  



          26        See  id. at 72.  



          27        See Weed v. Bachner Co., 230 P.3d 697, 703-04 (Alaska 2010).  



          28        Id.  at 700 (quoting Aspen Exploration Corp. v. Sheffield , 739 P.2d 150, 158  



(Alaska 1987)).  



                                                              -9-                                                        6848
  


----------------------- Page 10-----------------------

motive transforms an otherwise immune act into one from which liability may ensue.' "29  



Qualified immunity " 'protect[s] the honest officer who tries to do his duty,' " but it does  



                                                                                                 30  

not protect "malicious, corrupt, and otherwise outrageous conduct."  

                                                                                                     When  committee  



members raise qualified immunity as a defense and testify that they acted in good faith,           



the committee members are entitled to judgment as a matter of law unless the plaintiffs   



can present some admissible evidence that creates an issue of fact as to whether the  

committee members acted in bad faith or with an evil motive.31  



                                                                              

                   For  example,  in  Smith  v.  Stafford,  we  held  that  the  plaintiff's  affidavit  



                                                                                   

"contain[ed] assertions indicating that a genuine issue of material fact exists concerning  

[the defendant's] state of mind with regard to the [plaintiff's claims]."32  

                                                                                                           The plaintiff  



                                                                                                                            33  

           

stated that the social worker defendant falsified evidence and threatened the plaintiff. 



We held that "[t]he statements in the affidavit, if true, indicate that [the social worker]  

may have been acting in bad faith."34  

                                                        



                    Similarly,  in J  &  S  Services,  Inc.  v.  Tomter ,  the  plaintiff  alleged  that  a  



procurement official, "motivated by animosity against [the plaintiff] and a desire for  



personal financial gain, abused his position as a participant in the procurement process  

                                                                                        



          29       Id. (quoting Aspen Exploration , 739 P.2d at 158).
  



          30       Id.
  



          31       Smith v. Stafford, 189 P.3d 1065, 1074 (Alaska 2008) (citations omitted);
  



see Bauman v. State, Div. of Family & Youth Servs ., 768 P.2d 1097, 1100 (Alaska 1989).  



          32        189 P.3d at 1074.  



          33       Id.
  



          34
      Id. at 1075.  



                                                            -10-                                                       6848
  


----------------------- Page 11-----------------------

                                                                                                 35  

to prevent [the plaintiff] from forming a contract with the state."                                  We held that the  

     

plaintiff had stated a cause of action sufficient to defeat a motion to dismiss.36  

                                                                                                                    



                                              

                    Bachner's  claim  for  intentional  interference  with  prospective  economic  



opportunity alleged that the committee members acted in bad faith.  In response, the  



committee members claimed qualified immunity and submitted affidavits stating that  



they acted in good faith.  The superior court viewed Bachner's evidence in the light most  



favorable to Bachner and drew all reasonable inferences in Bachner's favor.  The court  

                                                                                                                  



found that Bachner failed to present a genuine issue of material fact and that, as a matter  



of law, the committee members' conduct could not be considered bad faith.  



                    We address each of Bachner's arguments in turn.  



                    1.       The proximity issue  



                    The Request for Proposals (RFP) and the RFP Evaluator's Guide for this  

                                        



project  required  the  committee  to  evaluate,  among  other  things,  public  convenience,  



including "location with other state agencies."  Before the superior court, Bachner argued  

                                                                                                          



that  Bennett  and  Senkow  considered  proximity  to  other  state  agencies  in  bad  faith  

                                                                                       



because they are both "long time DOT employees who wanted a new facility as close to  

                                 



the DOT headquarters . . . as possible."  Bachner argued that Madson told Bennett and  



Senkow that proximity to existing facilities was an impermissible criterion, but Bennett  



and Senkow ignored her and "recruited Weed into their conspiracy" to award the contract  



to McKinley.  Bachner also claimed that Madson told the bidders at a pre-bid conference  

                                                                                                   



that proximity to the DOT site would not be considered.  



          35        139 P.3d 544, 551 (Alaska 2006) (citing Kelley Prop. Dev., Inc. v. Town of  

                                          

Lebanon , 627 A.2d 909, 910, 923 n.30 (Conn. 1993); Conway Corp. v. Constr. Eng'rs,  

                                                          

Inc. , 782 S.W.2d 36, 40-41 (Ark. 1989)).  



          36        Id.  



                                                             -11-                                                          6848  


----------------------- Page 12-----------------------

                   The superior court noted that "location with other state agencies" was a  



published criterion in the RFP guide and observed that all parties agreed that adherence  

                                                                                    



to the written criteria in the RFP guide was important.  The superior court concluded,  

                                                                                         



"Without some evidence suggesting the actions of the [committee] members were in fact  

                                                     



wrongful on some level, the court cannot find bad faith."  



                   On  appeal,  Bachner  makes  the  same  arguments.    Bachner  quotes  the  



affidavit of Tom Roberts, a realtor who attended the pre-bid conference.  Roberts stated  

                                                                                                          



that Madson told the bidders that proximity to DOT would not be considered and that it  

                                                                    



was not a published criterion.  



                   Bachner does not appear to argue that any oral statements at the prebid  

conference actually modified the written terms of the RFP.37  

                                                                                         As noted above, the RFP  



                                                                                        

lists "location with other state agencies" as part of the "public convenience" factor.  DOT  



                                     

is a state agency, and the committee members properly considered proximity to the DOT  



                                              

facility in the scoring process.  We affirm the superior court's holding that consideration  



of a written RFP criterion generally cannot support an inference of bad faith.  



                   2.        The public transportation issue  



                   The RFP required all proposed buildings to have regularly scheduled bus  



service and a bus stop within 720 feet of a building entrance.  A bid from Fountainhead  

                                                                                          



Development was declared non-responsive because it included no plans to secure bus  

                                                                             



service.  The McKinley proposal included a compliant bus stop, but the McKinley bus  



stop did not have bus service at the time of the proposal.   



                   During  a  committee  meeting,  Madson  (in  the  presence  of  Bennett  and  



Senkow and another committee member) called the Fairbanks Bus Authority and spoke  

                                                             



          37       Cf. Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895  



P.2d 497, 504-05 (Alaska 1995) (oral representations at a prebid conference did not alter  

                                                                                 

the written terms of a construction contract).  



                                                            -12-                                                         6848  


----------------------- Page 13-----------------------

with acting Transportation Director Glenn Miller to determine whether bus service was  

                                                                                             



available at the McKinley building.  Miller apparently said that bus service could be  

                                                                                          



provided if certain conditions were met.  After that conversation, Madson advised Chief  



Procurement  Officer  Vern  Jones  that  service  was  available  and  asked  Jones  if  the  



McKinley  proposal  complied  with  the  public  transportation  requirement.    Jones  

                 



confirmed  that  the  McKinley  proposal  met  the  public  transportation  requirement.  

                                                                                      



Madson subsequently received a letter from Transportation Director Max Lyon, stating  

                                                                                                     



that Fairbanks Bus Authority would make a regularly scheduled stop near the McKinley  

                                                                                                            



building if McKinley received the contract.  



                    Before the superior court, Bachner claimed that the committee members  



wrongfully  determined  that  the  McKinley  proposal  met  the  public  transportation  



requirement.    Bachner  argued  that  Miller's  affidavit  established  that  he  told  the  



committee that bus service "could" be provided if certain conditions were met, whereas  



Madson told Jones that bus service "would" be provided.  In response, the committee  



members argued that:  (1) the McKinley proposal included a bus stop; (2) the Committee  

                                                                                      



called Miller, who told the Committee that service could be provided; (3) Jones advised  

                                                                                                            



Madson  that  the  McKinley  proposal  met  the  public  transportation  requirement;  and  



(4) the committee members swore that they acted in good faith.  



                    The superior court concluded that, at best, Bachner's evidence established  

                                                                           



that the committee members incorrectly or imprecisely reported Miller's statements to  

                                                                                                



Jones and incorrectly concluded that McKinley's proposal met the public transportation  

                                                       



requirement.  The superior court quoted Prentzel v. State, Department of Public Safety ,  

                      



where we said:  



                    [B]efore malice can become a disputed question of fact, the  

                                                                                                 

                    record   must   contain   at   least   some   objective   evidence  



                                                             -13-                                                       6848
  


----------------------- Page 14-----------------------

                   establishing  facts  capable  of  supporting  an  inference  of  

                             [38] 

                   malice.  



                                                                               39  

Citing Prentzel and Pauley v. Anchorage School District,   the superior court explained  



that an incorrect or inappropriate action does not raise an inference of malice or bad faith.  



The court noted that these committee members took steps to do their jobs correctly,  



applied identical criteria to the Fountainhead Development bid, and took notes in an  



attempt to document their efforts.  



                   On appeal, Bachner again points to Miller's affidavit and argues that the  



committee members acted in bad faith when determining that the McKinley proposal  



complied with the bus service requirement.  The committee members respond that, at  



best, Miller's affidavit establishes that "Madson imprecisely reported the details of her  



conversation  to  Vern  Jones,  misunderstood  the  nature  of  the  city's  bus  service  



assurances, and/or negligently failed to ensure that the McKinley proposal met the public  

                                                                                          



transportation requirement of the RFP," but it does not establish that Madson acted with  

                                                         



an evil or  a corrupt motive.  



                   The  committee  members  assert  that  Madson  reasonably  relied  on  the  

                                                                                                                



McKinley site plan proposal which showed a bus stop near the entrance to the McKinley  

                                         



building and a letter from Transportation Director Max Lyon to McKinley, which states:  

                                                                                                        



                   Due to the number of residents that bus stop would benefit,  

                   we  would  make  a  regular  scheduled  stop  near  your  office  

                   complex.  If you are successful in securing a lease with the  

                   Department  of  Transportation  for  your  new  building,  we  

                   would place a bus stop near the entrance of the Department of  

                                                                               

                   Transportation  and  Public  Facilities  headquarters  at  2301  

                                                                                            

                   Peger Road.  This should meet your contractual requirements  

                   with the State and would be implemented by the occupancy  

                                                            

                   date of your contract.  



         38        169 P.3d 573, 585 (Alaska 2007).  



         39        31 P.3d 1284, 1286 (Alaska 2001).  



                                                          -14-                                                       6848  


----------------------- Page 15-----------------------

(Emphasis added.)  Further, Chief Procurement Officer Jones confirmed that McKinley's     



proposal met the requirement.  



                   Given this evidence, we agree with the superior court's conclusion that  



Bachner  failed  to  present  a  genuine  issue  of  material  fact  regarding  the  public  



transportation issue.  Madson and the committee followed a fair process to determine  

                                                                                                          



whether the McKinley proposal satisfied the RFP.  They relied on the bus stop noted in  

                                                                                           



the McKinley proposal, their call to Miller at the Fairbanks North Star Borough, and their  

                     



discussion with Jones.  Miller disputes the details of the call, but the letter from Lyons  

                                                                                 



confirms that the committee members were not acting in bad faith when they concluded  

                                                                                       



that the Borough could make public transportation available.  We therefore affirm the  



superior court's decision on the public transportation issue.  



                   3.        The bid protest/refusal to stay issue  



                   In March 2002, after consulting with Chief Procurement Officer Jones and  

                                                                                                    

another state employee, Madson denied Bachner's bid protests.40  

                                                                                            On March 12, Madson  



                                                                                             

refused to stay the notice of award, stating that the current lease for the DOT building  



would end September 30, 2002.  On March 22, Madson stated that the current lease  



expired on September 20, 2002.  



                   Before  the  superior  court,  Bachner  argued  that  Madson  denied  the  bid  



protests in bad faith.  The superior court rejected this argument, explaining that at the  



summary judgment stage malice cannot be a disputed question of fact, unless the record  



                                                                                      

contains   some   objective   evidence   that   would   support   an   inference   of   malice.  



                                                                    

                   Bachner's  argument  was  based  principally  on  Madson's  inconsistent  



statements regarding the end date of the existing lease.  Madson appears to have made  



a mistake about the ending date for the lease when she denied a stay of the award during  



Bachner's bid protest appeals.  But there is nothing in the record that indicates that this  



          40       See State, Dep't of Admin. v. Bachner Co., 167 P.3d 58, 60 (Alaska 2007).  



                                                           -15-                                                        6848  


----------------------- Page 16-----------------------

mistake was made in bad faith.  We therefore affirm the superior court's decision on the  



bid protest issue.  



                   4.        The Weed scoring issue  



                   Before the superior court, Bachner claimed that Weed acted in bad faith by  

                                                                                       



lowering his score for the Bachner proposal in order to counteract Madson's overly high  



scores for Bachner.   Furthermore, Bachner alleged that Weed told Jerry Bowers, the  

                               



principal owner of Bowers Investment, that he was opposed to the Bachner proposal  



because if it won, Weed and his staff would have to spend the next 40 years split between  

                          



the ground floor and the basement in the Bachner building.  And Bachner alleged that  



Weed  told  Bowers  that  Bennett  and  Senkow  had  pressured  him  not  to  vote  for  the  

                                                                                                



Bachner proposal.  



                   Weed's affidavit states that after the first round of scoring he became aware  

                                                                       



of the identity of the  building described in the Bachner proposal and considered his  

                                



personal knowledge of that building.  Weed and Chief Procurement Officer Jones stated  

                                                                                                           



that the committee members may appropriately consider their personal knowledge and  



vary  their  scores  between  rounds.    Weed  argued  that  his  score  change  to  remedy  

                           



perceived bias was a mistake in the scoring process and did not establish bad faith.  



                   The superior court concluded that Weed may have placed "undue emphasis  

                                                                                                    



on indoor environment" when Weed considered that his staff would be split between  



basement  and  ground  floors  for  the  next  40  years.    The  court  reasoned  that  Weed's  

                                 



attempt       to   correct      the    perceived       bias     of    other     committee        members         was      a  



misunderstanding of his role in the procurement process.  The court compared the facts  

                                                                                                                

to J & S Services , Inc. v. Tomter41 and concluded that the factual allegations did not  



support an inference that Weed acted in bad faith.  



          41       139 P.3d 544, 548 (Alaska 2006).  



                                                           -16-                                                        6848  


----------------------- Page 17-----------------------

                    A claim of unfair scoring of a public bid proposal does not show bad faith   



                                                                                                  42  

unless the misconduct is motivated by malice or personal interests.     Bower's affidavit  



suggests that Weed "shuffled" his scores to offset what he perceived to be Madson's  



unfair favoritism toward the Bachner proposal, and that Weed was possibly motivated  

                                                                                                     



to avoid getting poor office space for his staff in the Bachner building.  But Weed's  



motivation to get the best office space was a public purpose, not a bad faith attempt to  

                                                                                                          



pursue his personal interests.  We therefore affirm the superior court's decision on the  

                 



Weed scoring issue.  



          C.	       The  Committee  Members  Are  Also  Protected  By  The  Exclusive  

                    Remedy Statute.  



                    The exclusive remedy state statute provides:  "Notwithstanding AS 44.77  

                                                                                        



or other law to the contrary, AS 36.30.560 - 36.30.699 and regulations adopted under  



those sections provide the exclusive procedure for asserting a claim against an agency  

                                                                       

arising  in  relation  to  a  procurement  under  this  chapter."43                                     

                                                                                           In  Weed  v.  Bachner  Co.,  



                                                          

Justice Fabe relied on this statute in her concurring opinion, explaining, "[c]laims against  



procurement committee members in their individual capacity for performing usual and  



proper duties might fairly be characterized as 'claims against an agency' even where bad  

                                                                                              

faith is alleged; they would thus be barred by the exclusive remedy provision."44  

                                                                                                                          The  



                                                                

superior court found that because Bachner had not presented a genuine issue of material  



                                                                                                                        

fact about bad faith and because the alleged conduct occurred within the scope of the  



committee's official duties, the exclusive remedy provision barred Bachner's claims.  



                                               

                    In this case, all of the committee members were acting within the scope of  



                                                              

their duties to review the RFP responses.  Even Weed's decision to "shuffle his scores"  



          42        See id. at 545.  



          43        AS 36.30.690 (emphasis added).  



          44        230 P.3d 697, 704 (Alaska 2010) (Fabe, J., concurring).  



                                                             -17-                                                           6848  


----------------------- Page 18-----------------------

was related to his official responsibility to identify the best proposal and not by any  



personal  motive  or  advantage.    And  as  we  explained  above,  Bachner  presented  no  



genuine issue of material fact regarding bad faith acts by the committee members.  We  

                                                                                                                               



therefore do not have occasion to consider whether the exclusive remedy provision bars  



suits against individual committee members for bad faith acts done within the course and  

                                    

scope of official duties.45  

                                         However, we hold that suits against individual procurement  



officers  for  acts  within  the  course  and  scope  of  their  official  duties  can  fairly  be  

                                                                



characterized as "claims against an agency."  In this case, there is no dispute that the  

                                       



committee members acted within the course and scope of their official duties.  Therefore,  

                                                                                                          



we  affirm  the  superior  court's  holding  that  the  exclusive  remedy  provision  bars  



Bachner's suit.   



          D.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  The  

                    Motion For Reconsideration.  



                    After the superior court's grant of summary judgment, Bachner moved for  

                                                                                        



reconsideration  and  asked  the  court  to  consider  Jerry  Bower's  December  30,  2011  

                          



                                                                                                       46 

supplemental affidavit.  Citing Civil Rule 77(k) and Katz v. Murphy ,   the superior court  



reasoned that the Rule "does not allow the moving party to raise new grounds as a basis  

                                                                                       



for reconsideration" and denied both motions.  



                    On  appeal,  Bachner  argues  that  the  superior  court  erred  by  refusing  to  

                                                                 



consider Bowers's supplemental affidavit because the superior court's initial decision  

                                                                                                  



invented a new legal test by requiring affirmative proof of targeted animosity rather than  

                                 



          45        The committee members argue that a finding of bad faith "is not dispositive   



of a 'course and scope' determination."  They argue that even if an official acts in bad  

faith, the exclusive remedy provision bars bad faith claims against the official so long as     

the official acts within the course and scope of official duties.  



          46         165 P.3d 649, 661 (Alaska 2007).  



                                                               -18-	                                                         6848
  


----------------------- Page 19-----------------------

inferential proof.  Bachner claims that Bowers's affidavit could have met the new legal     



test.  



                   The committee members argue that the superior court did not abuse its  



discretion  in  refusing  to  consider  Bowers's  affidavit  because  it  is  hearsay,  in  that  it  



recites excerpts of an informal interview with a witness, John Burns.  The committee  

                                 



members also argue that the affidavit was untimely because it was signed the day after  

                                                                                                                  



the court issued its summary judgment order.  In the alternative, the committee members  

                                                                   



argue that any error was harmless because Bowers's affidavit would not have changed  



the outcome.  



                   Bachner's  claims  that  the  superior  court  enunciated  a  new  standard  of  



"targeted animosity" for qualified immunity is incorrect.  The superior court described  



bad faith variously as "targeted animosity," "malice," "corruption," and "evil motive."  

                                                                 

In  J  &  S  Services ,  we  described  bad  faith  as  open  "animosity  toward"  the  bidder.47  



"Targeted  animosity"  is  synonymous  with  this  characterization.    Thus,  "targeted  



animosity"  is  not  a  new  statement  of  the  bad  faith  mental  state  required  to  defeat  



qualified immunity.  



                    Generally, a motion for reconsideration cannot be based on new information  



                    48  

                                                                                                 

or arguments.          The supplemental affidavit from Jerry Bowers was new information that  



could  have  been  submitted  previously.    Where  a  party  has  sufficient  opportunity  to  



introduce evidence but waits until after the close of evidence, a superior court does not  

                                   



abuse its discretion in refusing to consider the evidence.  The court did not commit an  



          47        139 P.3d 544, 550-51 (Alaska 2006).  



          48       Alaska R. Civ. P. 77(k); see also Katz,165 P.3d at 661.  



                                                            -19-                                                          6848  


----------------------- Page 20-----------------------

                                  

abuse of discretion by applying the normal rule that this untimely information should not  

be considered.49  



          E.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Awarding  

                    Attorney's Fees.  



                    The court found the committee members were the prevailing parties and  



awarded the State $93,871.85 in fees and costs under Alaska Civil Rules 79 and 82.  

                                                                                                                      



Bachner  argues  that  the  superior  court  should  not  have  awarded  fees  because  the  



committee members were represented by State attorneys and did not personally incur any  

                                                                                                                    



legal costs.  Bachner claims that the purpose of Rule 82 is to "partially compensate a  



successful litigant for actual fees incurred."  This is incorrect.  The purpose of Rule 82  



is  to  "afford reasonable partial compensation for attorney's fees to the winning civil  

         



             50  

litigant."                                   

                 The Rule does not "preclude a court from [awarding] fees greater than those  



                                                                                                      51  

                                                                    

agreed to by an attorney charging no fees or lower than usual fees."                                      Thus, the Rule  



                                                                                                    52  

                                                  

does not limit awards to "actual fees incurred" as Bachner argues.                                      And contrary to  



          49        See  Yang  v.  Yoo,  812   P.2d   210,  217  (Alaska  1991)  (citing Hutchins  v.  



Schwartz, 724 P.2d 1194, 1197 (Alaska 1986)); see also State, Dep't of Natural Res. v.        

Transamerica Premier Ins. Co.                  , 856 P.2d 766, 776 (Alaska 1993) (striking down post- 

trial affidavit).  Cf. Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584  

P.2d 15, 20 (Alaska 1978) (holding that superior court erred by refusing to consider   

deposition where parties frequently referred to it, but failed to formally move to publish                

the deposition).  



          50        Municipality of Anchorage v. Gentile , 922 P.2d 248, 264 (Alaska 1996)  



(quoting  Wise Mech. Contractors v. Bignell, 718 P.2d 971, 973 (Alaska 1986)).  



          51        Id. at 264 n.22 (citation omitted).  



          52        Further, the committee members correctly point out that adopting Bachner's  



                                                                      

proposed rule (that the State can never recover funds when it indemnifies its committee  

                                                                              

members) would allow litigants to file frivolous suits against committee members in their  

official  capacity,  thereby  forcing  the  State  to  expend  resources  with  no  hope  of  

compensation.  



                                                             -20-	                                                       6848
  


----------------------- Page 21-----------------------

                                                                                                   

Bachner's assertions, the amended final judgment nowhere names the State as a "party."  



                                               

Instead the court made the fees payable to the State.  Fees are properly payable to the  

State when it expends resources defending its committee members.53  



                   Bachner also argues that fees should not have been awarded because the  



State acted as "in-house counsel."  In response, the committee members correctly note  



that attorney's fees can be awarded for work performed by Attorney General's Office  

                                                         

staff acting as in-house counsel.54                                         

                                                  Even though the  committee members were not in  



privity with the State for the purpose of collateral estoppel, the question of attorney's fees  



is a separate one.  Because State attorneys defended the committee members in their  



individual capacities, it is proper to make any fee award payable directly to the State.  



                   Finally, Bachner argues that  it  is  a  public interest litigant and therefore  

                                                                       



protected from adverse fee awards.  Again, the committee members correctly note that,  

                                        



even   if   public   interest   litigants   are   protected   from   adverse   fee   awards   under  



AS 09.60.010(b)(3)(I), Bachner cannot be considered a public interest litigant due to its  



significant financial interest in this case.  We therefore affirm the superior court's fee  



award.  



V.        CONCLUSION  



                   Bachner failed to present a genuine issue of material fact that the committee  

                                                                                                  



acted in bad faith, and we conclude that the exclusive remedy statute bars Bachner's  



          53       See  Alpine  Indus.,  Inc.  v.  Feyk,  22  P.3d  445,  447,  450  (Alaska  2001)  



(affirming superior court's award of attorney's fees to the State for cost of defending  

                                                                            

official).  



          54       Greater  Anchorage  Area  Borough  v.  Sisters  of  Charity  of  House  of  



Providence , 573 P.2d 862, 863 (Alaska 1978) ("Nothing in [Cont'l Ins. Co. v. U.S. Fid.  

                                                                                                

&  Guar.  Co.,  552  P.2d  1122,  1128  (Alaska  1976)]  was  intended  to  alter  our  long- 

     

standing practice of awarding attorney's fees to public entities who litigate chiefly, and  

                              

often entirely, through in-house counsel.").  



                                                          -21-                                                     6848
  


----------------------- Page 22-----------------------

claim.  For these reasons, we AFFIRM the superior court's grant of summary judgment                             



in favor of all committee members.  We also affirm the superior court's fee award.  



                                                                       -22-                                                            6848
  

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