Enertrol Power Monitoring Corp. v. State
This text of 814 P.2d 556 (Enertrol Power Monitoring Corp. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Plaintiff appeals from a summary judgment for defendants in this action in which it asserts that its disqualification from bidding on a public contract violated applicable statutes.
In January, 1989, the state Legislative Administration Committee (LAC) published an advertisement for bids for an automation and control system for the State Capitol Building. The advertisement specified that interested contractors should submit prequalification data. Plaintiff was among the contractors that responded. In April, LAC notified, plaintiff by letter that it was disqualified. Throughout the process, LAC attempted to follow the prequalification requirements of ORS 279.037 et seq. However, plaintiff contends, and the state concedes, that the procedures generally and the disqualification notice to plaintiff specifically violated the statutes in a number of respects, some of which we will describe in the context of our discussion of the issues to which they pertain. Ultimately, LAC awarded the contract to defendant Control Contractors, Inc. (Control).
Plaintiff then brought this action in circuit court, pleading a claim for declaratory relief and a second claim under the Administrative Procedures Act. Plaintiff did not pursue an appeal under ORS 279.043 and ORS 279.045, the specific appeal provisions for contractors who have been disqualified pursuant to the prequalification statutes.1 By the [169]*169terms of ORS 279.045(1) and (6), the administrative and judicial review provisions of the statute are exclusive. See Clark Electric, Inc. v. State Highway Division, 93 Or App 693, 763 P2d 1199 (1988).
The threshold question is whether the trial court had jurisdiction over this action for relief under the declaratory judgment statute and the APA. Plaintiff argues that ORS 279.045(6)
“refers to judicial review of [agency] decisions regarding the merits of a bidder’s disqualification made under the appeal and hearing provisions of ORS 279.045. * * * [Although [plaintiff] has always contested the merits of its disqualification, it is not contesting the merits of its disqualification in this piece of litigation.”
Rather, plaintiff contends, it is contesting the procedures that LAC followed and is disputing the entire process by which the contract was awarded, not simply its own disqualification.
Neither the substantive review nor the exclusivity provisions of ORS 279.045 support plaintiffs distinction between procedure and the merits of a disqualification. Both are reviewable under ORS 279.045(3). It is true that plaintiffs first amended complaint contains allegations that relate to facets of the award process in addition to its own disqualification and also that the relief that it seeks includes the “nullification” of and injunction against further work under the contract between the state and Control. However, the gravamen of the action and the contention on which all the others depend, is that plaintiff was improperly disqualified. More fundamentally, it is beyond dispute that plaintiff was disqualified under circumstances to which ORS 279.045 [170]*170applies; a statutory exclusive review provision cannot be circumvented simply by alleging some facts that fall outside its scope, when the essential claim is within the scope of the statute.
Plaintiffs stronger argument is that it was prevented from pursuing an appeal under ORS 279.043 and ORS 279.045, because LAC’s April, 1989, disqualification letter did not inform plaintiff of its appeal rights, as required by ORS 279.041(2). However, that fact does not change what plaintiffs appeal rights were. It may have had the effect of tolling the time for appeal under the applicable statute, but it does not create jurisdiction under other statutes that the applicable one expressly makes unavailable.2
Plaintiff also relies on ORS 279.039(2), which requires the contracting agency to specify, in a notice of disqualification, “which subsections of ORS 279.037 the prospective bidder failed to comply with.” The statute then prescribes:
“Unless the reasons are specified, the bidder shall be deemed to have been prequalified in accordance with the application.”
Plaintiff argues that, because the notice did not apprise it of the reasons, it was prequalified as a matter of law. However, that question, too, is one that may be decided only through the exclusive statutory procedure for review of disqualification decisions. We hold that the trial court lacked jurisdiction over this action.3
Judgment vacated; remanded with instructions to dismiss.
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Cite This Page — Counsel Stack
814 P.2d 556, 108 Or. App. 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enertrol-power-monitoring-corp-v-state-orctapp-1991.