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Kila, Inc. v. Alaska Depts. of Administration and Correction, and Allvest, Inc. (7/8/94), 876 P 2d 1102
<![CDATA[
NOTICE: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
KILA, INC., )
) Supreme Court No. S-5237
Appellant, )
)
v. ) Superior Court No.
) 4FA-90-1918 CI
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, STATE OF ) O P I N I O N
ALASKA, DEPARTMENT OF CORREC- )
TIONS, and ALLVEST, INC., ) [No. 4105 - July 8, 1994]
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Rodger W. Pegues, Judge pro tem.
Appearances: Robert John and William R.
Satterberg, Jr., Fairbanks, for Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
RABINOWITZ, Justice.
This appeal arises from the Department of Corrections'
award of a contract to Allvest, Inc. for the housing of minimum
security prisoners in the Fairbanks area. KILA, Inc. ("KILA"),
an unsuccessful bidder, contested the award, exhausted its
administrative appeals, and then appealed to the superior court.
The superior court affirmed the Department of Administration's
decision denying KILA's protest. This appeal followed.
I. FACTS AND PROCEEDINGS
In August 1988, the Department of Corrections ("DOC")
received authorization to seek proposals for a provider of
professional services in the operation of an adult community
residential center in Fairbanks.1 KILA and Allvest, Inc.
("Allvest") submitted bids. DOC subsequently cancelled its
original Request for Proposals ("RFP"), because a change in
zoning requirements rendered Allvest's proposal non-responsive,
and because KILA submitted a bid beyond the amount of money that
the State had allocated for the contract.2 DOC issued a new RFP
in August 1989.3 At that time, Walter Majoros, the Director of
Statewide Programs for DOC, was designated by the Commissioner of
DOC, Susan Humphrey-Barnett, to serve as its procurement officer
in the matter.
Majoros directed Benjamin J. Fewell, Jr., DOC's Program
Coordinator, to establish and sit as non-voting chair of a
Proposal Evaluation Committee ("PEC") for the purpose of
evaluating proposals submitted by KILA and Allvest in response to
the new RFP. DOC's Criminal Justice Planner, Marianne McNabb,
submitted suggestions on the "experience and geographic location
required for a PEC member to have an adequate understanding of
the needs and limitations"of the residential center. However,
she neither participated in the selection of individual PEC
members nor contacted them regarding the evaluation of the bids.
Applying the RFP evaluation criteria, four of the PEC's
five voting members rated Allvest's proposal higher than KILA's.
Based on the majority vote of the PEC, Fewell recommended to
Majoros that DOC negotiate a contract with Allvest. DOC then
issued a notice of intent to award a contract to Allvest. KILA
protested the award.
After issuance of the notice of intent, PEC member Lew
Reece submitted a memorandum to Humphrey-Barnett, alleging that
Fewell had imposed his own values on the PEC proceedings and
skewed the outcome. He met with Ken Brown, DOC's Northern
Regional Director, and also with Humphrey-Barnett. Majoros
immediately investigated Reece's concerns, contacting the other
PEC evaluators to determine if they thought Fewell was biased.
The other four voting members stated that they believed Fewell
was impartial and that they had voted independently. Humphrey-
Barnett concurred with Majoros' determination that Reece's
allegations were unfounded.
Allvest's original bid outlined a plan to develop a
facility on Badger Road. After DOC issued the notice of intent
to award the contract, local opposition to using the Badger Road
site developed. Aware of the pressure regarding the location,
DOC began to discuss its options. Because Allvest had proposed a
location that met both the requirements of the RFP and zoning
requirements, retracting the intent to award could have caused
severe difficulties. Fewell, therefore, advised Majoros not to
cancel and re-bid but "to continue on course and try to reach a
solution"that would provide for use of the proposed Badger Road
location.
On November 21, 1989, DOC signed the contract with
Allvest to commence January 1, 1990, giving Allvest approximately
one month to bring the facility up to specifications.4 On the
same day Tanana Chiefs Conference, Inc. ("TCC"), the owner of
record, was informed by the United States Department of Housing
and Urban Development ("HUD") of potential lease problems
involving the Badger Road location. As the hearing officer
found, "There is no evidence outside of the viability of the
TCC/HUD lease issue from which to conclude that Allvest was not a
responsible proposer." As public pressure increased, including
substantial pressure on HUD, Allvest contacted a local real
estate agent to research the availability of other locations.
The agent discovered that KILA did not own the facility it was
using and eventually a lease was executed between Allvest and the
property owner that would enable Allvest to use the existing
facilities.
DOC denied KILA's bid protest on November 16, 1989.
KILA appealed the denial of its protest on November 30, 1989.
KILA also corresponded with Fewell, Humphrey-Barnett, and Larry
McKinstry, an assistant attorney general, requesting
"[r]easonable notice of, and right to attend any and all State
meetings addressing the Allvest contract modification requests,
or the KILA contract dispute, or any meeting related to such."
The Department of Administration granted KILA an
administrative hearing to address the bid protest issues in
dispute. A hearing was held from May 29 to June 2, 1990.
Pursuant to the hearing officer's recommendations, the
Commissioner of the Department of Administration denied KILA's
appeal in September 1990.
KILA appealed the decision of the Department of
Administration to the superior court. The superior court
affirmed the Department of Administration's decision, and this
appeal followed. On appeal, KILA raises numerous specifications
of error, ultimately seeking to have DOC re-bid the contract and
pay KILA's bid preparation costs.5
II. DISCUSSION
A. Alleged Bias in the Bidding Process
When soliciting bids for goods and services, a
government agency has an implied contractual duty to consider
bids in a fair and honest manner:
[I]n exchange for a bidder's 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. Breach of this implied
contract on the part of an agency entitles a
disappointed bidder to recover the costs
incurred in preparation of the bid. . . .
[T]he "reasonable basis"standard for review
of administrative decisions, see Jager v.
State, 537 P.2d 1100, 1107-08 (Alaska 1975);
Kelly v. Zamarello, 486 P.2d 906, 916-17
(Alaska 1971), is applicable in this
situation.[6] See Keco Industries, Inc. v.
United States, 492 F.2d 1200, 1203-04 (Ct.
Cl. 1974).
King v. Alaska State Hous. Auth., 633 P.2d 256, 263 (Alaska 1981)
(King II). A review of the entire record persuades us that
KILA's bid was fairly and honestly considered.7
1. KILA's Contention that Majoros Was Not
Impartial
Majoros was responsible for all DOC procurements under
statewide programs.8 KILA objects to Majoros' participation in
the procurement process, claiming that Majoros was not impartial
as required by AS 44.62.350, and that his partiality resulted in
a competitive advantage to Allvest.
Alaska Statute 44.62.350 governs the appointment of
hearing officers to hear and adjudicate disputes under the
Administrative Procedure Act:
The governor shall assign a qualified,
unbiased, and impartial hearing officer, with
experience in the general practice of law, to
conduct hearings under this chapter.
Relying on this provision, KILA contends that Majoros was
required to be impartial in reviewing the protest letter.
However, the application of AS 44.62.350 is governed by
AS 44.62.330(b), which reads in relevant part:
The procedure of an agency not listed in
(a) of this section shall be conducted under
AS 44.62.330-44.62.630 only as to those
functions to which AS 44.62.330-44.62.630 are
made applicable by the statutes relating to
that agency.
Neither the Department of Administration nor DOC are among the
agencies listed in AS 44.62.330(a), and thus they are not covered
by the Administrative Procedure Act.
In addition, AS 36.30.670(a) expressly exempts from the
Administrative Procedure Act informal hearings such as the one in
which the Department of Administration reviewed the denial of
KILA's bid protest. Therefore, AS 44.62.350 does not apply to a
procurement officer's decision regarding a bid protest or to
informal hearings held subsequent to a protest appeal.
Nevertheless, the inapplicability of AS 44.62.350 does not
relieve Majoros of the obligation to review bid protests in an
impartial and unbiased manner.
Our review of the record, and in particular our
consideration of Majoros' response to KILA's letter of protest,
persuades us that none of KILA's objections demonstrate bias or a
lack of impartiality on Majoros' part.9 KILA has not shown that
Majoros was biased either in approving the PEC recommendation to
award the contract to Allvest or in reviewing and rejecting
KILA's protest letter.10 We further conclude that none of KILA's
objections prove that Allvest gained a competitive advantage by
virtue of Majoros' decision. Taken individually or cumulatively,
the alleged "variances"to which KILA objects are not material.11
2. KILA'S Assertion that Marianne McNabb
Had a Severe Conflict of Interest in Violation of
the Executive Branch Ethics Act
KILA asserts that DOC official Marianne McNabb's
involvement in the preparation of the RFPs and her involvement in
a prior program audit of Allvest's Cordova Center in Anchorage
violated the Executive Branch Ethics Act, AS 39.52.010-.960.12
Specifically, KILA argues that McNabb's prior involvement with
Allvest prohibited her from participating in the bid process.13
Prior to being hired by DOC, McNabb was employed by Allvest as
vice-president of operations from October 1987 through December
1988.14
The hearing officer rejected KILA's contention:
KILA alleges a violation of the State
ethics law although no explanation is
provided as to what specific provision of
AS 39.52 is alleged to have been violated.
No evidence was brought forward or even
hinted at that would suggest that Ms. McNabb
benefitted in any way from her former
association with Allvest or that she was not
honest, truthful, and unbiased in her
evaluation of Allvest facilities. Ms. McNabb
was not a member of the PEC and testimony
established that her only involvement with
the solicitation, evaluation, or award of the
contract was to suggest minor changes in the
scope of work section of the RFP after her
input was solicited by DOC and suggested some
wording changes in the final contract. No
evidence was presented to suggest that her
input resulted in an advantage or
disadvantage for either proposer.
Our review of the record leads us to conclude that
substantial evidence supports the hearing officer's findings. As
the State notes, McNabb's involvement was limited to advancing
some suggestions for the "scope of work"section of the RFP and
the geographic and professional criteria for selecting the PEC
members. McNabb had neither a personal nor a financial interest
in the contract in question. Any personal or financial interest
she may have had was insignificant. Therefore, her actions did
not violate the Act. See AS 39.52.110(b)(1).15
One final observation should be made in regard to this
issue: KILA contends that pursuant to AS 39.52.240, McNabb
should have requested an opinion from the Attorney General as to
her apparent conflict of interest. As indicated above, in the
absence of any personal or financial interest in the contract,
and given the fact that McNabb did not participate in or
influence the PEC's contract award process, she was not required
to contact the Attorney General regarding the alleged conflict.
3. KILA'S Contention that the Contract
Award Process Was Permeated with Illegalities
KILA also claims the State's allowance of Allvest's
substitution of facilities after the award of the contract
resulted in an unlawful competitive advantage to Allvest that
requires voiding the contract. In order to establish a
competitive advantage, KILA must prove that a "material"variance
was effected in the contract:
Not all amendments to competitively
bid contracts are prohibited, only those
regarded as material. The concept of
materiality in this context has not been
satisfactorily captured in a single phrase.
One court has spoken of "an essential change
of such magnitude as to be incompatible with
the general scheme"of competitive bidding;
another has phrased the question to be
whether the amendment "so varied from the
original plan, was of such importance, or so
altered the essential identity or main
purpose of the contract, that it constitutes
a new undertaking." These formulations
simply recognize that the materiality concept
prohibits those changes which tend to be
subversive of the purposes of competitive
bidding.
Kenai Lumber, 646 P.2d 215, 221 (Alaska 1982) (footnotes
omitted).16 Five factors determine whether a contract change
constitutes a "material"variance:
(1) the legitimacy of the reasons
for the change;
(2) whether the reasons for the
change were unforeseen at the time the
contract was made;
(3) the timing of the change;
(4) whether the contract contains
clauses authorizing modifications; [and]
(5) the extent of the change,
relative to the original contract.
Id. (footnotes omitted).
The hearing officer applied the five factors and
concluded that the amendment "was not a major variation of the
original plan nor did it so alter the essential identity or main
purpose of the contract that it constituted a new undertaking."
Based on the facts, supporting testimony, and evidence presented,
the hearing officer determined: (1) that there were legitimate
reasons for the change in facilities; (2) that DOC did not
foresee the reasons for the change at the time the contract was
signed, and that Allvest acted in good faith; (3) that given the
necessity to have an operative facility by January 1, 1990, the
contract amendment was timely; (4) that the State consistently
allows contract modifications when they are in its best
interests;17 and (5) that the modification did not interfere with
the "intent"of the contract--to secure a correctional facility
in the Fairbanks area--and that "[t]he specific site of the
facility was not relevant to the functioning of the program." We
conclude that the hearing officer's factual findings have
substantial support in the record and that his interpretation of
"material variance"has a reasonable basis in law.
KILA advances numerous other improprieties and alleged
illegalities in the contracting process. Our review of these
points in light of the entire record and applicable law persuades
us that none have merit.18
B. KILA'S Contention that the State Violated the Open
Meetings Act
KILA argues that the Open Meetings Act ("Act"), AS
44.62.310-.312, required that it be granted reasonable notice of,
and the right to attend and participate in, meetings concerning
the disposition of KILA's contract, the Allvest contract
modification requests, and KILA's contract dispute. Contending
that the State failed to give public notice of these meetings and
denied KILA's representatives access to them, KILA urges us to
void any actions modifying the contract.
The state argues that neither DOC nor the Department of
Administration violated the Act because the Act does not apply to
informal groups of state employees who have no power to take
collective action by vote. More particularly, the State notes
that
McKinstry, Fewell, Weimar and Majoros
were not part of any formally appointed or
constituted body. No statute, regulation or
formal administrative action created this
group as a collective entity, nor were these
persons appointed or elected to the group.
As a collective entity they had no powers,
and could take no actions. They could not
take action by a group vote.
The State further contends that no "meetings" to
discuss contract modifications by any official or even informal
"bodies"took place. The "meetings"in question consist of two
separate teleconferences held between Majoros, Fewell, McKinstry,
and the president of Allvest. The hearing officer declined to
apply the Act to KILA's appeal because of the nature of the
meetings at issue. The hearing officer found that the meetings
were "informal"and that it would be "impossible to apply [the
Act] to the everyday dealings of public employees when they meet
with each other and those outside of State government in the day-
to-day conduct of this State's business."
We agree. Alaska Statute 44.62.310(a) provides in
relevant part:
All meetings of a legislative body,
of a board of regents, or of an
administrative body, board, commission,
committee, subcommittee, authority, council,
agency, or other organization, including
subordinate units of the above groups, of the
state or any of its political subdivisions,
including but not limited to municipalities,
boroughs, school boards, and all other
boards, agencies, assemblies, councils,
departments, divisions, bureaus, commissions
or organizations, advisory or otherwise, of
the state or local government supported in
whole or in part by public money or
authorized to spend public money, are open to
the public except as otherwise provided by
this section.[19]
KILA has presented no evidence that these informal
meetings were held by governmental units whose actions come
within the ambit of AS 44.62.310. This statute contemplates
meetings of a governmental body, including subordinate units
thereof. Under the particular facts of this record we hold that
the Act did not apply to the individuals who participated in the
two meetings now questioned.
III. CONCLUSION
KILA has failed to prove that any of the DOC officials
involved acted in bad faith, were biased, or lacked impartiality.
Further, KILA failed to demonstrate that the hearing officer for
the Department of Administration lacked a reasonable basis for
his conclusion that Allvest's bid was responsive. KILA's
arguments that Majoros was biased, that McNabb had a conflict of
interest, and that the process was permeated with illegalities
are meritless. Finally, KILA failed to show any violation of the
Open Meetings Act. Thus, the contract between DOC and Allvest is
not voided, and KILA is not entitled to its bid preparation
costs.
AFFIRMED.
_______________________________
1 The purpose of the Request for Proposals was to provide
housing security and other services for appropriately classified
offenders whom DOC might assign to the center. Alternative
placement centers of this type provide DOC with placement options
for some misdemeanant offenders, and serve as halfway houses for
offenders who are being released back into the community.
2 After submission of the Allvest proposal, the Fairbanks
North Star Borough enacted a zoning change that denied use of the
building proposed by Allvest for the purpose intended. This left
KILA as the only available proposer. It was alleged that KILA's
bid was approximately $185,000 higher than Allvest's bid.
3 The proposal responses were due on or before September
18, 1989. DOC received Allvest's proposal on September 15, 1989.
On September 17, KILA informed DOC that although it had delivered
its proposal to a private delivery service in Fairbanks, the
weather conditions were so bad in Juneau that planes were unable
to land. In order to promote fairness and competition, the
program coordinator amended the RFP to provide for receipt of
KILA's proposal. See 2 AAC 12.850 (authorizing extension of
solicitation). Allvest objected to the amendment allowing any
extension of time.
4 Allvest had concluded that it would take approximately
20 days to bring the Badger Road facility up to the required
standards.
5 Allvest has fully performed the contract in question, a
development which normally would moot this entire appeal. Given
these circumstances, the State moved to dismiss the appeal. An
individual justice of this court denied the motion, stating that
"[w]hile appellant's claim that it is entitled to its bid
preparation costs may be unsuccessful, the appeal is not rendered
moot by the fact that the successful bidder has fully performed
the contract."
In addition, the State argues that this court should
refuse to address the issue of bid preparation costs because KILA
failed to raise the point at the administrative level. This is
incorrect. In the November 2, 1989 notice of protest letter from
KILA's counsel to the Commissioner of DOC, KILA requested that it
be awarded the contract, or in the alternative, that the contract
be readvertised for bid. On November 7, 1989, KILA's attorney
sent the Commissioner a supplement that requested bid preparation
costs. Thus, KILA made the request at the appropriate time.
6 Under this standard, "we merely seek to determine
whether the agency's decision is supported by the facts and has a
reasonable basis in law even if we may not agree with the
agency's ultimate determination." Fairbanks N. Star Borough Sch.
Dist. v. Bowers Office Prods., 851 P.2d 56, 58 (Alaska 1992)
(quoting Tesoro Alaska Petroleum v. Kenai Pipe Line Co., 746 P.2d
896, 903 (Alaska 1987)).
7 In an administrative appeal based on the agency record,
we accord no deference to the decision of the superior court and
independently scrutinize the administrative action. Tesoro
Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903
(Alaska 1987).
8 Under AS 36.30.250 and AS 36.30.560-.585, the
procurement officer must make decisions on the contract award and
also make the determinations necessary on protests. In
determining an award of contract, a procurement officer's initial
duty is as follows:
The procurement officer shall award
a contract under competitive sealed proposals
to the responsible and responsive offeror
whose proposal is determined in writing to be
the most advantageous to the state taking
into consideration price and the evaluation
factors set out in the request for proposals.
AS 36.30.250(a).
9 In its notice of bid protest, KILA presented the
following points:
1. KILA argued that several years ago, the Department
of Health and Social Services rejected the facility that Allvest
proposed to lease as "insufficient and inappropriate"for use as
a youth facility. Majoros responded, "A decision by the
Department of Health and Social Service [sic] as to the
suitability of any piece of property to meet their needs for a
given project has no bearing on the Department of Corrections
[sic] needs or requirements for this contract."
2. KILA disputed Majoros' acceptance of Allvest's
proposed location, in light of potential problems with nuisance
suits, suits for taking of private property, and local zoning
laws, and challenged his reliance on the negotiation process to
rectify any difficulties, claiming that the failure to address
these issues was arbitrary and capricious. Majoros responded
that pursuant to the RFP's requirements, Allvest provided
information concerning permits, local zoning ordinances, codes,
and laws, and also held a public hearing. Majoros noted that
"[t]he RFP does not require total community approval, except
through zoning requirements, but does provide for expression of
community concern and suggestions."
3. KILA asserted that Majoros inadequately considered
the effects of the alternative placement center's site upon local
property values. Majoros responded that under AS 36.30.250 he
could consider only price and the evaluation factors set out in
the RFP, and no other factors or criteria, when making his
decision.
Further, he contended, the RFP required that comments
concerning defects and objectionable material in the solicitation
be made in writing and received by the purchasing authority at
least 10 days before the opening of the proposals. Therefore,
Majoros concluded that any changes in the RFP's evaluation
criteria, such as impact on property values within the vicinity
of a residential center, should have been requested within that
time frame. Majoros also stated that no evidence at the time of
the bid indicated that if the state complied with local zoning
requirements, a negative impact on local property values would
occur.
In further support of its contentions of bias, KILA
points to Majoros' acceptance of Allvest's allegedly deficient
fire-safety plan, resident termination/walking procedures,
resident medical/dental services, and disaster plan. KILA also
questions Majoros' holding that the PEC did not have an
affirmative duty to investigate the representations of the
bidders.
10 KILA also asserts that Majoros' rejection of its bid
protest was arbitrary, capricious, and an abuse of discretion.
This argument is without merit.
11 A material variance from a bid specification requires
rejection of the bid. Chris Berg, Inc. v. State, Dep't of
Transp., 680 P.2d 93, 94 (Alaska 1984). A variance is material
if it provides a bidder with a substantial advantage over other
bidders, thus limiting or stifling competition. Id. All
proposals for public contracts must therefore "substantially
comply with all requirements contained in the invitation for
proposals." King v. Alaska State Hous. Auth., 512 P.2d 887, 892
(Alaska 1973) (King I). In King I we stated:
Thus all terms of ASHA's invitation
became by implication part of a valid
proposal, in order that competition among
redevelopers remain equal. Consistent with
this well established principle courts hold
that while a "material"variance from the
invitation requires rejection of the
proposal, a "minor"variance does not require
rejection of the proposal.
Id. (footnote omitted). We review the agency's determination
that a bid is responsive to the agency's solicitation under the
reasonable basis standard. Chris Berg, 680 P.2d at 94.
12 Alaska Statute 39.52.150(a) provides:
A public officer, or an immediate
family member, may not attempt to acquire,
receive, apply for, be a party to, or have a
personal or financial interest in a state
grant, contract, lease, or loan if the public
officer may take or withhold official action
that affects the award, execution, or
administration of the state grant, contract,
lease, or loan.
Also relevant is AS 39.52.110(b):
Unethical conduct is prohibited,
but there is no substantial impropriety if,
as to a specific matter, a public officer's
(1) personal or financial interest in
the matter is insignificant, or of a type
that is possessed generally by the public or
a large class of persons to which the public
officer belongs; or
(2) action or influence would have
insignificant or conjectural effect on the
matter.
13 As DOC's Criminal Justice Planner, McNabb is
"responsible for the implementation and facilitation of various
DOC programs with service contractors such as KILA and Allvest."
She recently rewrote the DOC standards regarding the provision of
services by various contractors. Her position requires that she
stay in close contact with DOC contractors to ensure that they
understand and comply with those standards.
14 As a former Allvest employee McNabb was responsible for
its Alaska operations. KILA states that McNabb authored and
approved the operations manual, which formed a portion of the
submittal supporting Allvest's bid. After McNabb started work
with DOC as a criminal justice planner, her activities relating
to Allvest were minimal. At the request of Humphrey-Barnett in
May 1989, McNabb participated in an audit of Allvest's Anchorage
program to determine its compliance with DOC standards. The
audit was performed independently of the contract award process
and was not intended to be used in conjunction with the Fairbanks
award. McNabb participated as one of three evaluators who
concluded that the Allvest program was in compliance.
15 The exemption found in AS 39.52.110(b)(2) is also
applicable since McNabb had no role in the PEC evaluation process
and did not affect its outcome.
16 Cf. supra note 11 (citing similar rule for variance in
bids from an RFP).
17 After reviewing Allvest's request for a change in the
facility's location, Fewell contacted both the Department of
Administration and the Attorney General's Office. He requested
advice concerning the requirements of the procurement code and
whether the change in location would constitute a modification in
the contract so severe as "to warrant not allowing the request."
Both the Department of Administration and the Attorney General's
Office indicated that the modification was permissible.
18 KILA argues that DOC's cancellation of the first RFP
was improper. Since KILA did not protest DOC's cancellation of
the first RFP on appeal to the superior court, the issue is not
properly before us. KILA further contends that Allvest's bid was
in numerous respects nonresponsive. We find no merit in this
specific contention.
In addition, KILA argues that under AS 44.62.350(c) the
hearing officer was unqualified in that he had not been admitted
to practice law for at least two years immediately before his
appointment. This contention has little merit. First, review of
the record shows that KILA waived this contention by not raising
it at the administrative level. Second, AS 36.30.630 provides
that hearings held on public contract controversies "shall be
conducted according to AS 36.30.670,"which in turn expressly
exempts hearings under AS 36.30 from the Administrative
Procedure Act, AS 44.62. Alaska Statute 36.30.670 does not
require that hearing officers appointed under that chapter be
admitted to the practice of law.
19 We have broadly construed the policy objectives of the
Act, as stated in AS 44.62.312, to encourage openness in
government dealings:
Given the strong statement of
public policy in AS 44.62.312, the question
is not whether a quorum of a governmental
unit was present at a private meeting.
Rather, the question is whether activities of
public officials have the effect of
circumventing the [Act].
Brookwood Area Homeowners Ass'n v. Municipality of Anchorage, 702
P.2d 1317, 1323 n.6 (Alaska 1985). In Brookwood, we defined a
"meeting" to encompass "every step of the deliberative and
decision making process when a governmental unit meets to
transact public business." Id. at 1323.
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