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5 IN THE SUPERIOR COURT OF GUAM 6
7 In the Appeal of TOWN HOUSE ) SPECIAL PROCEEDINGS CASE NO.
DEPARTMENT STORES, INC., dba ) SP0050-11 8 ISLAND BUSINESS SYSTEMS & )
9 SUPPLIES, )
) DECISION AND ORDER 10 By TOWN HOUSE DEPARTMENT )
STORES, INC., dba ISLAND BUSINESS )
11 SYSTEMS & SUPPLIES, )
12 )
Appellant. )
13 ----------------------------)
14
15 INTRODUCTION
16 This matter came before the Honorable Arthur R. Barcinas on re-assignment, upon 17
18 which the Court conducted a review of the file and the "Complaint and Appeal of Decision by
19 the Office of the Public Auditor" (hereinafter "Complaint and Appeal") filed in this case. 20 Attorney James M. Maher represents the "Appellant," Attorney Laura 1. Mooney represented 21 the Guam Department of Education (hereinafter "DOE"), and the firm of Carlsmith Ball, LLP 22
23 represents Xerox Corporation. The Court now issues the following Decision and Order on the
24 matter presented on review. 25 II 26 II
Decision and Order Special Proceedings Case No. SP0050-11
PROCEDURAL BACKGROUND
2 On May 3, 2010, DOE issued Invitation for Bid No. 006-2010 (hereinafter "the first
3 IFB"). In the Appeal of Town House Department Stores, dba Island Business Systems & 4 Supplies, Special Proceedings Case No. SP0050-11, Complaint and Appeal of Decision by the 5 Office of the Public Auditor, p. 2, ~ 6. The Appellant submitted a proposal for the first IFB, as 6 did Xerox Corporation (hereinafter "Xerox") however, DOE did not immediately select any of 7
8 the bidders as the most qualified offeror for the first IFB. Id. at p. 3, ~~ 12 and 13. On or about
9 September 2,2010, the Appellant lodged a protest with DOE regarding the pending selection of 10 the most qualified offeror, complaining that DOE was in violation of 5 GCA § 5211 (g), which 11 requires a contact to be awarded with reasonable promptness after bidding. Id. at p. 3, ~ 11 and 12
p. 4, ~ 14. DOE did not decide the protest and issued another Invitation for Bid No. 022-2010 13
14 on September 10, 2010 (hereinafter "the second IFB"), regarding similar services to the first
15 IFB. Id. at p. 4, ~~ 14 and 15. On October 18,2010, the Appellant appealed DOE's failure to 16 resolve its protest of the first IFB to the Office of Public Accountability (hereinafter "the Public 17 Auditor"), who held that DOE must issue a decision on the matter. Id. at p. 4, ~~ 15 and 16.
18
19 The protest was denied by DOE on November 23, 2010. Id. at p. 4, ~17. On November
20 28,2010, the Appellant appealed the denial of its protest to the Public Auditor. Id. at p. 4, ~ 19. 21 The appeal was captioned "In the Appeal of Town House Department Stores, Inc., dba Island 22 Business Systems and Supplies," and filed as Appeal No. OPA-PA-I0-01O. Id., Exhibit A.
23 During the pendency of the appeal to the Public Auditor, DOE filed a "Motion to Lift 24
25 Automatic Stay to Proceed with Award to Appellant of Items #1 & #3 in IFB-006-2010." The
26 Public Auditor ruled in the Appellant's favor as to every item, however, denied DOE's motion.
Decision and Order Special Proceedings Case No. SP0050- I I
The Appellant "appeals" the Public Auditor's denial of DOE's motion. The Appellant
2 does not dispute that no contract has yet been entered between DOE and Xerox, the Appellant,
3 or any other bidders under the first IFB issued in this case. In order to appeal the Public 4 Auditor's denial of DOE's motion, DOE did not file the instant action, rather, the Appellant 5 filed the "Complaint and Appeal" before this Court on April 11, 2011.
6 DISCUSSION
7
8 Reserving decision on whether the Appellant has standing to appeal a denial of a motion
9 filed by DOE, the Court will address the type, manner and method of "appeal" filed in this case, IO as it finds that issue is determinative. In its "Complaint and Appeal" the Appellant claims that II judicial review of the Public Auditor's decision concerning a procurement protest is properly 12 addressed by the Superior Court under 5 GCA §§ 5425(c)(2), 5480, and 5707. In the Appeal of I3
14 Town House Department Stores, dba Island Business Systems & Supplies, Special Proceedings
15 Case No. SP0050-11, Complaint and Appeal of Decision by the Office of the Public Auditor, p. 16 2, ~ 6 (filed March 21,2011).
17 The Supreme Court of Guam directs that "where an agency's specific legislation directs 18
how the agency action is to be judicially reviewed, then that agency's law should govern how 19
20 one is to seek judicial review of that agency's action." Carlson v. Perez, 2007 Guam 6, ~ 59.
21 This mandate is jurisdictional, and if a party fails to comply with the specific procedures 22 permitting judicial review of particular claims, the Superior Court is divested of jurisdiction to 23 hear such claims.
24
25 Under 5 GCA § 5004(b), the provisions of the Guam Procurement Law "shall apply to
26 every expenditure ofpublic funds, irrespective of their source ... except as otherwise specified 27 in § 5501 of this Chapter, by this Territory, acting through a governmental body as defined
Decision and Order Special Proceedings Case No. SP0050- I I
herein . ..." 5 GCA § 5004(b) (emphases added). Under 5 GCA § 5030(k), a "governmental
2 body" is:
3 . . any Department, Commission, Council, Board, Bureau, Committee, Institution, Agency, Government Corporation, Authority or other establishment or 4 establishment or official of the Executive Branch of the government of Guam, 5 except for the Government of Guam Retirement Fund, Guam Community College, the University of Guam, the Department of Education, and the Guam 6 Memorial Hospital Authority. 7 5 GCA § 5030(k) (emphases added).
8 DOE issued the IFB in this case. DOE is not a governmental body under 5 GCA § 9 5030(k), and therefore, under these applicability provisions, procurements made by DOE appear IO
II exempted from the provisions of the Guam Procurement Law. Interestingly, Appellant cites to
12 no statute or case law which would make the provisions of the Guam Procurement Law 13 controlling, with regards to procurement protests, as presented in this case.
14 There is some authority which indicates that portions of the Guam Procurement Law are 15 applicable to DOE. 5 GCA § 5125 is entitled, "Application of this Chapter to Executive 16
17 Branch," and states: 18 Every governmental body which is in the purview of the Executive Branch, and 19 including the Government of Guam Retirement Fund, Guam Community College, the University of Guam, the Department of Education, the Guam Memorial 20 Hospital Authority, Guam Economic Development and Commerce Authority, and the Guam Visitor's Bureau, shall be governed by Articles 1,3,6, 7,10, 11 and 12 21 of this Chapter, except to the extent that any such governmental body or other 22 above-named body may be exempted from the centralized procurement regime of Article 2 of this Chapter, in which event the Director of each such governmental 23 body or other above named body shall be substituted wherever there is reference to the Public Policy Office, Chief Procurement Officer or Director of Public 24 Works in Articles 4, 5, 8 and 9 of Chapter 5 of Title 5 of the Guam Code 25 Annotated.
It is the intent of I Liheslaturan GuAhan [the Legislature] to require all Executive 26 Branch governmental bodies, including autonomous agencies, and other above-
named bodies, to be governed to the maximum extent practicable by Chapter 5 of 27 Title 5 of the Guam Code Annotated. This provision requires any governmental 28 body, and each above-named body, to conduct their procurement activities
Decision and Order Special Proceedings Case No. SP0050- I I
pursuant to Chapter 5 of Title 5 of the Guam Code Annotated, except insofar as said Chapter establishes and effects a system of centralized procurement.
2 5 GCA § 5125 (emphases added).
3 Under this statute, DOE is subject to certain articles of the Guam Procurement Law, 4
5 however, other articles, including Article 9, which contains the provisions regarding
6 procurement protests and appeals to the Public Auditor, are not necessarily applicable to DOE. 7 Emphasizing the idea that DOE is not subject to all of the provisions of the Guam 8 Procurement Law, DOE has its own Procurement Regulations, approved by the Twenty -
9
10 Second Guam Legislature on August 19, 1994, Letter of Senator Pilar Cruz Lujan, November
II 30, 1994, after the enactment of the Guam Procurement Law on December 14, 1992. 12 The applicable provisions of DOE's Procurement Regulations permit a bidder to file a I3 protest to the Director of Education. "The Director of Education shall have the authority, prior 14 to the commencement of an action in court concerning the controversy, to settle, and resolve a 15
16 protest of an aggrieved bidder, offeror, or contractor, actual or prospective, concerning the
17 solicitation or award of a contract." DOE Procurement Regulations, Chapter 9, Legal and 18 Contractual Remedies, Section 9.2.1.
19 "Protestors may file a protest on any phase of solicitation or award including, but not 20 limited to, specifications preparation, bid solicitation, award, or disclosure of information 21
22 marked confidential in the bid or offer." DOE Procurement Regulations, Chapter 9, Legal and
23 Contractual Remedies, Section 9.2.3.2. 24 "If the protest is not resolved by mutual agreement, the Director of Education shall 25 promptly issue a decision in writing. The decision shall: 1. State the reasons for the action 26
27 taken; and 2. Inform the protestant of its right to administrative and judicial review." DOE
28 Procurement Regulations, Chapter 9, Legal and Contractual Remedies, Section 9.2.7.
Decision and Order Special Proceedings Case No. SP0050-ll
In part: "A decision on the protest shall be made by the Director of Education as
2 expeditiously as possible after receiving all relevant, requested information.... A copy of the
3 decision as contained in this Section shall be mailed or otherwise furnished immediately to the 4 protestant and any other party intervening." DOE Procurement Regulations, Chapter 9, Legal 5 and Contractual Remedies, Section 9.2.7.1.
6 Although all of these regulations require a procurement bid protest to be submitted to the 7
8 Director of Education, none require, or even mention, an appeal from a decision of the Director
9 of Education to the Public Auditor. In fact, the regulations omit any reference to the Public 10 Auditor, and seem to require that any appeal be filed directly with the Superior Court of Guam.
II "Unless a person adversely affected by the decision commences an action in the Superior Court, 12 a decision of the Director of Education is final in accordance with Sections 9.2.3. (Filing of 13
14 Protest) through 9.2.9. (Effect of Judicial or Administrative Proceeding)." DOE Procurement
15 Regulations, Chapter 9, Legal and Contractual Remedies, Section 9.2.10. 16 The Court is not entirely convinced that DOE is subject to all of the provisions of the 17 Guam Procurement Law, to include Article 9, and thus, that its procurements, procurement 18
19 protests, or decisions of the Director of Education regarding procurement protests are subject to
20 review by the Public Auditor. The implication of the DOE's Procurement Regulations is that 21 judicial review should be sought directly from an adverse decision of the Director of Education 22 regarding a procurement protest, with no involvement of the Public Auditor.
23 Despite excluding any reference to the Public Auditor, or review by the Public 24
25 Auditor, DOE's Procurement Regulations do reference the applicability of 5 GCA § 5480 to
26 judicial review, stating: 27 A solicitation of award may be in violation of the law due to actions of DOE 28 employees, bidders, offerors, contractors, or other persons. After consultation
Page 60f18
"Decision and Order Special Proceedings Case No. SP0050-11
with the Attorney General, the Director of Education may determine that a solicitation or contract award in in violation of the provisions of the Guam 2 Procurement Act and the DOE Procurement Regulations. Similarly, after consultation with the Attorney General, the Director of Education may determine 3 that a solicitation or award violates Chapter 11 (Ethics in Public Contracting) of the Guam Procurement Act or regulations promulgated thereunder. Any such 4 determination shall be made in writing after an opportunity to be heard is given, 5 and such determination is subject to appeal. The courts designated in Section 5480 (Waiver of Sovereign Immunity in Connection with Contracts) of the Guam 6 Procurement Act, may find that a solicitation or award is in violation ofthe law. 7 DOE Procurement Regulations, Chapter 9, Legal and Contractual Remedies, Section 9.5.2.
8 (emphasis added).
9 The DOE Procurement Regulations later adopt 5 GCA § 5480(a) almost wholesale, with IO
II one minor difference: 12 The Superior Court of Guam shall have jurisdiction over an action between the Department and a bidder, offeror, or contractor, either actual or prospective, to I3 determine whether a solicitation or award of a contract is in accordance with the 14 statutes, regulations, and the terms and conditions of the solicitation. The Superior Court shall have such jurisdiction in actions at law or in equity, and whether the 15 actions are for monetary damages or for declaratory, or other equitable relief. 16 DOE Procurement Regulations, Chapter 9, Legal and Contractual Remedies, Section 9.9.1.
17 (emphasis added).
18
19 Thus, assuming that 5 GCA §§ 5480(a), and 5707(a) (which merely refers back to
20 5480(a)) control the method through which the "Appellant" may appeal a final decision 21 regarding a procurement protest from DOE, it is apparent that the Appellant has not met the 22 jurisdictional prerequisites to obtain judicial review. In this case, the Appellant is seeking 23 judicial review of its protest of DOE's failure to quickly select a most qualified offeror for the 24
25 IFB. Under the statutes cited by the Appellant, Guam's Procurement Law provides a specific
26 method for obtaining judicial review of a procurement protest on an IFB issued by the Territory 27 of Guam.
28
Page 70f18
Decision and Order Special Proceedings Case No. SP0050-11
Pursuant to 5 GCA § 5425, any bidder, offeror, or contractor who may be aggrieved
2 with the method of source selection or solicitation of a contract may protest to the Director of
3 the DOE. 5 GCA § 5425(a). Under 2 GAR, Div. 4, § 310 1(8), the term "solicitation" includes 4 an "Invitation for Bids." 2 GAR, Div. 4, § 3101(8). Accordingly, 5 GCA § 5425 and any 5 related statutes referencing the term "solicitation" apply to both bids and proposed bids. In this 6 case, the Appellant disagreed with the failure to quickly select anyone as the most qualified 7
8 offeror for the IFB, and therefore, filed a protest with DOE, possibly under 5 GCA § 5425(a).
9 When a protest is not resolved by mutual agreement, DOE must promptly issue a written IO decision stating the reason for the action taken and informing the protestant of the right to II administrative and judicial review. 5 GCA § 5425(c); and DOE Procurement Regulations, 12 Chapter 9, Legal and Contractual Remedies, Section 9.2.7. DOE issued written decisions 13
14 regarding the action just under three months after the filing of the protest. In the Appeal of
15 Town House, Special Proceedings Case No. SP0050-11, Complaint and Appeal of Decision by 16 the Office of the Public Auditor, p. 4, ~ 17.
17 Under 5 GCA § 5425(c) (if applicable), within fifteen (15) days of receipt of the adverse 18
19 decision of the DOE a protestant is required to file an appeal with the Public Auditor. 5 GCA §
20 5425(e). The Appellant followed these statutes and filed an appeal with.the Public Auditor on 21 November 28,2010. In the Appeal of Town House, Special Proceedings Case No. SP0050-11, 22 Complaint and Appeal of Decision by the Office of the Public Auditor, p. 4, ~ 19.
23 After some interesting procedural matters the Public Auditor issued a "Decision" on the 24
25 entire matter on March 7, 2011. Mb Exhibit A, In the Appeal of Town House Department 26 Stores, Inc., dba Island Business Systems and Supplies, OPA-PA-I0-0I0, Decision, (March 7, 27 2011). Pursuant to 5 GCA § 5425 (t), this decision is final unless a protestant "commences an 28
Page 8 of 18
'Decision and Order Special Proceedings Case No. SP0050-11
action in the Superior Court in accordance with subsection (a) of §5480 of this Chapter." 5
2 GCA § 5425(f).
3 Tellingly,5 GCA § 5480 is entitled, "Waiver of Sovereign Immunity in Connection with 4 Contracts," indicating that this particular section concerns suits pennitted to be filed against the 5 Territory of Guam, and subsection (a) states:
6 (a) Solicitation and Award of Contracts. The Superior Court of Guam shall have 7 jurisdiction over an action between the Territory and a bidder, offeror, or 8 contractor, either actual or prospective, to detennine whether a solicitation or award of a contract is in accordance with the statutes, regulations, and the tenns 9 and conditions of the solicitation. The Superior Court shall have such jurisdiction in actions at law or in equity, and whether the actions are for monetary damages IO or for declaratory, or other equitable relief.
11 5 GCA § 5480(a) (emphasis added).
12 According to this statute, a protestant must file an action for monetary damages, 13
14 declaratory relief, or other relief, against the Territory of Guam in order to give the Superior
15 Court jurisdiction to review a dispute over whether a bid solicitation was in accordance with the 16 law, and the Territory only waives sovereign immunity in conjunction with a bid solicitation 17 when these requirements are met. 2 GAR, Div. 4, § 9108(a)(1) reiterates this requirement, 18
19 along with Section 9.9.1 of the DOE Procurement Regulations. Additionally, under subsection
20 (c) of this statute, the Superior Court has jurisdiction to grant the civil remedy of injunctive 21 relief against the Territory. 5 GCA § 5480(c); see, e.g., 7 GCA §§ 20301-20305 (injunctive 22 relief may be had by filing a complaint in a civil action).
23 The relief afforded under 5 GCA § 5480 is in the fonn of a civil action for ordinary 24
25 relief, rather than a special proceeding affording extraordinary relief, as provided through writs
26 or other special proceedings. Compare 7 GCA §§ 20301-20305; and 7 GCA § 26801 (2005) 27 with 7 GCA §§ 30102, 31102, 31203; and 31215; accord In re Dep't of Agriculture v. Civil
Decision and Order Special Proceedings Case No. SP0050- I I
Service Commission, 2009 Guam 19 , 9 (mandamus is an extraordinary remedy); Carlson v.
2 Perez, 2007 Guam 6 " 66, 70 (issuance of writ of mandate is an extraordinary remedy); and
3 Duque v. Superior Court of Guam, 2007 Guam 15,,8,13-21, (writs are extraordinary, and will 4 not lie where an ordinary civil remedy may be sought through a regular civil action).
5 Revealingly, in Duque, the Supreme Court of Guam found that a special proceedings 6 action requesting the extraordinary relief of a writ of prohibition could not be maintained where 7
8 the petitioner could have maintained a regular civil action requesting the plain, regular remedy
9 of an injunction. Id. at ,,18-20. "'Our Supreme Court continues to adhere strictly to the 10 principle that the extraordinary writs of prohibition and mandamus are not available where an II adequate remedy exists in the ordinary course of law, either legal or equitable.'" rd. at, 18 12 (quoting Agricultural Services, Inc. v. City of Goodirzg, 818 P.2d 331, 333-34 (emphasis 13
14 added)). Because the Petitioners could have sought regular injunctive relief through a civil
15 taxpayer action, a special proceedings action was unnecessary. Id. at, 13. 16 Again, in Carlson, the Supreme Court of Guam found that judicial review need not be 17 obtained through the mechanism of a special proceedings action. In finding that a general civil 18
19 action might suffice to provide judicial review, the court contrasted the type of judicial review
20 available under a special proceeding writ of mandamus, and the type of judicial review available 21 in a worker's compensation action under 22 GCA § 9122, which directs that a party obtains 22 judicial review by filing a regular civil action requesting injunctive relief Carlson, 2007 Guam 23 6"58-59 (citing Fagan v. Dell'Isol~ 2006, Guam 11 , 12 n.5).
24
25 To further highlight the contrast between the "special" statutory actions, such as writs,
26 and other general types of civil actions, the language of 7 GCA §§ 30102 and 31206 actually 27 distinguishes between the procedure allowed in a general "civil action" and a special proceeding 28
Page 10 ofl8
'Decision and Order Special Proceedings Case No. SP0050- I I
by way of mandamus by allowing only certain specified civil definitions and modes of answer
2 to be applied in a writ of mandamus proceeding. Thus, it is clear that a special proceedings
3 action is not necessarily the proper method through which a party should seek judicial review in 4 every case, and there is a difference between a special proceeding and a civil action requesting 5 ordinary relief. Carlson, 2007 Guam 6 ~~ 58-59.
6 In fact, 5 GCA § 5480 allows judicial review only through an action seeking an ordinary 7
8 civil remedy in law or equity, such as "monetary damages," "declaratory" relief, "other
9 equitable relief," or "injunctive relief." 5 GCA § 5480(a) and (c). IO 5 GCA § 5480 (f) and 2 GAR, Div. 4, § 9108(a)(6) state that "[a]ll actions permitted by II this Article [Section] shall be conducted as provided in the Government Claims Act." 5 GCA § 12
13 5480(f); and 2 GAR, Div. 4, § 9108(a)(6).
14 The so-named "Appellant" did not file a civil action in the Superior Court in accordance
15 with 5 GCA § 5480(a), as directed under 5 GCA § 5425(f). Instead, the Appellant filed the 16 "Complaint and Appeal of Decision by the Office of the Public Auditor" as a special 17 proceedings case, labeled SP0050-11, which is currently before this Court. More importantly, 18
19 the action fails to name the Territory of Guam or the Department of Education as the Defendant
20 or Respondent, and in fact, names no one as the responding or defending party, not even the 21 Public Auditor, see Carlson, 2007 Guam 6 ~~ 55 and 72 (failure to name CSC as a party in a 22 Superior Court action "fatal to the claim that it was an appeal of the CSC decision."). Finally, 23 the Appellant did not allege any compliance with the procedures set forth under the Government 24
25 Claims Act, and it is entirely unclear whether the Appellant is requesting any of the relief
26 permitted under 5 GCA § 5480(a) and (c). 27
28
Page 11 of 18
Decision and Order Special Proceedings Case No. SP0050-II
The Court acknowledges that there could be confusion as to the specific method of
2 obtaining judicial review of a decision of the Director of Education or the Public Auditor in a
3 dispute concerning the solicitation of an IFB due to an apparent conflict between: (1) the 4 provisions of 5 GCA § 5480(f), requiring that judicial review of a procurement protest be 5 obtained through an action conducted as provided in the Government Claims Act; (2) the 6 holding of Carlson, stating that an agency's specific legislation directing judicial review must be 7
8 strictly followed in order to obtain judicial review; and (3) the holding of Pacific Rock Corp. v.
9 Dep't of Education, 2000 Guam 19, stating that a party seeking judicial review of an 10 administrative decision under the Guam Procurement Law "should not seek relief under the II Government Claims Act," as would seem to be required under 5 GCA § 5480(f). Id. at ~~ 16-
12
I3 19.
14 Despite these seeming inconsistencies, it appears to the Court that the Appellant was
15 required to file a civil action requesting ordinary relief under 5 GCA § 5480, naming itself as 16 the Plaintiff, and naming the Territory of Guam as the Defendant, and therefore, the Court does 17 not have jurisdiction over this "special proceedings" action. As the Court has noted, 5 GCA § 18
19 5480 directs a protestant to seek ordinary civil relief in the form of a civil action in order to
20 obtain judicial review in a procurement action. Significantly, the holding in Pacific Rock also
21 firmly directs a protestant to seek civil relief in the form of a civil action. The Supreme Court 22 of Guam's most important determination in that case was that "the Procurement Law at 5 GCA 23 § 5001 et seq. is a comprehensive statute providing a mandatory scheme of administrative 24
25 remedies including judicial relief," therefore, "it is the statute which, upon compliance with
26 procedure, satisfies the jurisdictional prerequisite to commencing an action against the
Decision and Order Special Proceedings Case No. SP0050-11
Government of Guam at the Superior Court." Pacific Rock Corp., v. Dep't of Educ., 2000
2
3 Although the court used broad language to renounce the practice of filing a government 4 claim in order to obtain judicial review of a procurement protest, the Pacific Rock decision is 5 distinguishable from this case in three ways. First, the holding in Pacific Rock specifically 6 addressed judicial review of a protest "arising out of contracts entered into under the 7
8 Procurement Law," as under 5 GCA §§ 5427, 5706, and 5707. Id. (emphasis added). Because
9 no contract has been entered under the Guam Procurement Law, particularly, no contract arising 10 under 5 GCA §§ 5427, 5706, and 5707 has been entered in this case, the holding of Pacific II Rock does not address the facts presented in this case and addresses only some of the applicable 12
13 laws.
14 More significantly, no administrative appeal to the Public Auditor was ever filed by the
15 appellee in Pacific Rock. Id. at , 10. Instead, the Pacific Rock court found that the Superior 16 Court prematurely assumed jurisdiction over the matter under the Government Claims Act when 17 it wrongly concluded that a "letter from the Attorney General's office was the final decision 18
19 required under the Procurement Law to start the running of the limitations period under the
20 Claims Act." Id. at '11. In the Pacific Rock case, the ability to file a civil action in the 21 Superior Court was never triggered, as the appellee failed to timely follow the mandates of 5 22 GCA § 5427 and 5 GCA § 5481 in order to confer jurisdiction to the Superior Court. Id. at'
23 28. Accordingly, the appellee failed to fully comply with the mandates of 5 GCA § 5001, et 24
25 seq., stripping the Superior Court of jurisdiction to hear the matter. Conversely, in this case, an
26 appeal was filed with the Public Auditor, a final decision was issued by the Public Auditor in 27 accordance with 5 GCA § 5425(c), and the time period under which to file a civil action as
Decision and Order Special Proceedings Case No. SP0050-II
required by 5 GCA § 5480 was triggered under 5 GCA § 5481(a), possibly giving the Superior
2 Court jurisdiction over a civil action, if one had been filed by the Appellant (and if decisions of
3 the Director of Education regarding procurement protests are subject to review by the Public 4 Auditor).
5 Finally, it seems that the Supreme Court of Guam struck only the practice of filing an 6 actual government claim in order to seek judicial review, specifically stating: "a party who 7
8 seeks judicial relief from an administrative action taken pursuant to the Procurement Law
9 should not seek relief under the Government Claims Act." Pacific Rock Corp., 2000 Guam 19 to at , 19 (emphasis added); and , 10 (appellee filed both an administrative claim and suit under II the Government Claims Act). The Supreme Court reasoned that its prior rulings requiring a 12 litigant to pursue a government claim resulted in litigants being forced to "twice seek I3
14 administrative relief;" once under the Guam Procurement Law, and once again under the
15 Government Claims Act, which was contrary to the stated purpose of 5 GCA § 5001, et seq. rd. 16
17 This Court fmds that the provisions of 5 GCA § 5480(f) can be harmonized with the 18
19 ruling in Pacific Rock, because the plain language of 5 GCA § 5480(f) does not necessarily
20 require a protestant to file an actual government claim, but merely directs the protestant to 21 proceed with an action "at law or in equity," for "monetary damages or for declaratory or other 22 equitable relief," 5 GCA § 5480(a), which shall "be conducted as provided under the 23 Government Claims Act." 5 GCA § 5480(f) (emphasis added). The legislature's use of the 24
25 word "as" lends itself to the interpretation that no Government Claim need be filed, rather, only
26 the procedural aspects of the Government Claims Act need be followed in order to put the
'Decision and Order Special Proceedings Case No. SP0050-11
Territory of Guam on notice that a party plans to bring suit against it. This interpretation is
2 consistent with a pertinent Compiler's comment to this code section, stating:
3 The MPC is changed again to follow the Government Claims Act with respect to the procedure required in actions against the government. Since this Section 4 allows suits in certain specified cases, obviously claims need not first be filed 5 with the Attorney General, but at least the same court procedure must be followed.
6 5 GCA § 5480, Comment of the Compiler of Laws.
7
8 Although compiler's notes are not law, they are often helpful in interpreting the
9 legislature's intent in enacting a code section, and in this case, the Compiler's comment is in 10 accord with the holding of Pacific Rock, and the particular language of 5 GCA § 5480(f).
11 Accordingly, a party may follow the mandates of 5 GCA § 5001, et seq., without violating the 12
13 holding of Pacific Rock by properly filing a civil action against the Territory of Guam which
14 follows the notice requirements and procedural posture of a government claim under 5 GCA § 15 5480(a) and (f).
16 Because Pacific Rock is distinguishable based on the lack of an awarded contract in this 17 case, and the appellee's failure to file an administrative appeal to the Public Auditor before 18
19 filing an actual government claim in the Pacific Rock case, this Court finds that 5 GCA § 5480,
20 in its entirety, is applicable to this case under the holding in Carlson, and the Appellant was 21 required to file a civil action, following the procedural posture of the Government Claims Act 22 without filing a Government Claim, in order to receive judicial review of its protest of the 23 method of bid selection. 5 GCA § 5480(a) and (f) (2005).
24
25 More important to this Court's analysis is the determination that even if the Court were
26 to find Pacific Rock controlling in this case, the Pacific Rock court intentionally and 27 specifically did not rescind the requirement that a party seeking judicial relief is required to
Decision and Order Special Proceedings Case No. SP0050-11
follow the procedural mandates of 5 GCA § 5001, et seq. Pacific Rock Corp., 2000 Guam 19 ,
2 26. In its most general reading, the holding of Pacific Rock stated only that a party seeking
3 judicial review should not proceed under the Government Claims Act, thereby possibly voiding 4 the provisions of 5 GCA § 5480(t) and 2 GAR, Div. 4, § 9108(a)(6). The Pacific Rock court 5 did not hold that a protestant should never file a civil action as required under 5 GCA § 5480(a).
6 In fact, the Supreme Court of Guam held the opposite, reiterating that the Superior Court has 7
8 jurisdiction over an action between the government and a bidder or contractor under 5 GCA §
9 5480, and reaffirming that a protestant must proceed as directed under these statutes in order to 10 obtain judicial review. Id. at " 18 and 26. Accordingly, the provisions of 5 GCA § 5480(a)
II were not affected by the holding in Pacific Rock, and still operate to require that a protestant file 12
13 a civil action against the Territory of Guam requesting monetary, declaratory, injunctive,
14 equitable or other civil relief in order to obtain judicial review. 15 Accordingly, whether or not Pacific Rock is read as repealing the requirement that a 16 litigant proceed pursuant to the Government Claims Act, even in the situation presented in this 17 case, where no contract has yet been awarded, and an appeal to the Public Auditor was filed, 5 18
19 GCA § 5480(a) has not been superseded by the Pacific Rock decision, and the Appellant was
20 required to file a civil action against the Territory of Guam in order to give the Superior Court 21 jurisdiction over its claims. Consequently, the Court finds that the Appellant has not complied 22 with the "mandatory scheme of administrative remedies" provided under 5 GCA § 5001, et.
23 seq., in order to satisfy "the jurisdictional prerequisite to commencing an action against the 24
25 Government of Guam at the Superior Court." Pacific Rock Corp., 2000 Guam 19,26.
26 In order to designate the action as a civil action, and receive a new case number, in 27 keeping with the Court's categorical and chronological manner of assigning case numbers, the <Decision and Order Special Proceedings Case No. SP0050-11
Appellant is required to file a new case and dismiss the incorrectly filed Special Proceedings
2 Case No. SP0050-11. In any case, the "Appellant" would be required to dismiss the special
3 proceedings action upon the filing of the new civil action with the same underlying cause, i.e., 4 the request for review of the Public Auditor's final decision regarding procurement or bid 5 solicitation. As: (1) the current case would be subject to dismissal upon the filing of a new civil 6 action case; (2) the Appellant is required to name the Territory of Guam as the Defendant, and 7
8 provide notice to allow waiver of sovereign immunity; and (3) this case has lingered on the
9 docket of the Superior Court of Guam for almost one year without correction; the Court IO dismisses SP0050-11 without prejudice, so that the "Appellant" will properly file a civil action II pursuant to 5 GCA § 5001, et. seq., and 5 GCA § 5480, naming itself as the Plaintiff, and 12
naming the Territory of Guam as the Defendant, and providing notice as required under the 13
14 Government Claims Act, if this is still possible. 15 Without finding that the Appellant's action in seeking review from the Public Auditor 16 was proper or appropriate, the Court finds that a bidder seeking judicial review of a decision 17 regarding the propriety or legality of a contract solicitation is required to follow the procedure 18
19 set forth in the Guam Procurement Law at 5 GCA § 5480. See DOE's Procurement
20 Regulations, Chapter 9, Legal and Contractual Remedies, Sections 9.5.2. and 9.9.1. The 21 Appellant has failed to properly pursue its legal remedies under the Guam Procurement Law by 22 filing a civil action requesting ordinary civil relief against the Territory of Guam. Further, it is 23 not apparent that the Territory of Guam has waived sovereign immunity upon receiving proper 24
25 notice of any action against it, as under 5 GCA § 5480(f). Accordingly, the Appellant has failed
26 to meet its burden to show that it has met the jurisdictional prerequisites to seeking judicial 27
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Decision and Order Special Proceedings Case No. SP0050-11
review of the method of proposal selection and solicitation, and the "Complaint and Appeal"
2 filed by the "Appellant" must be dismissed.
3 CONCLUSION 4 After considering the "Complaint and Appeal" filed, the Court finds that it does not have 5 jurisdiction over this action as a special proceeding which does not name the Territory of Guam 6 as a defendant. Based upon the foregoing, the "Complaint and Appeal of Decision by the 7
8 Office of the Public Auditor" is DISMISSED WITHOUT PREJUDICE.
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D_Lt....1...IO_o~l_p _ __ 12 IT IS SO ORDERED this _ _ \3
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15 • 16 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 17
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