FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

HAWAIIAN DREDGING CONSTRUCTION COMPANY, INC.,

Intervenor-Appellant-Appellee,

v.

NAN, INC., Petitioner-Appellee-Appellant,

and

BOARD OF WATER SUPPLY,

Respondent-Appellee-Appellee,

and

DESIREE L. HIKIDA, HEARINGS OFFICER, 

OFFICE OF ADMINISTRATIVE HEARINGS, 

DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, 

STATE OF HAWAI#I, Appellees-Appellees

NO. CAAP-21-0000533

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 1CCV-21-0001032)

OCTOBER 31, 2022

BY: GINOZA, C.J., AND WADSWORTH AND MCCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

In 2021, Respondent-Appellee-Appellee Board of Water

Supply (BWS) invited bids for a project to construct a concrete

reservoir (Project). After receiving a bid from PetitionerAppellee-Appellant Nan, Inc. (Nan), BWS determined that Nan was a

"nonresponsible" bidder for the Project (i.e., not capable of

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000533

31-OCT-2022

10:02 AM

Dkt. 52 OP
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fully performing the contract requirements) and that BWS would

not consider Nan's bid. BWS awarded the contract to IntervenorAppellant-Appellee Hawaiian Dredging Construction Company, Inc.

(Hawaiian Dredging). Nan submitted a request for administrative

review (Request for Review) of BWS's decision to the Office of

Administrative Hearings (OAH), Department of Commerce and

Consumer Affairs. After briefing and a hearing, the Hearings

Officer vacated BWS's determination of Nan's "nonresponsibility"

and ordered that BWS's contract award to Hawaiian Dredging be

terminated. Hawaiian Dredging appealed the Hearings Officer's

decision to the Circuit Court of the First Circuit (Circuit

Court),1/ and BWS joined the appeal. After further briefing and a

hearing, the Circuit Court directed the Hearings Officer to set

aside her decision and to enter an order containing a directive

reinstating the contract award to Hawaiian Dredging. 

Nan appeals from the September 17, 2021 Judgment,

entered in favor of BWS and Hawaiian Dredging (collectively,

Appellees) by the Circuit Court. Nan also challenges the Circuit

Court's September 17, 2021 "Findings of Fact, Conclusions of Law,

and Order Granting . . . Hawaiian Dredging['s] . . . Application

for Judicial Review, Filed August 18, 2021, and [BWS's]

Substantive Joinder to Hawaiian Dredging's Application for

Judicial Review, Filed August 19, 2021" (FOFs/COLs/Order). 

On appeal, Nan contends that the Circuit Court erred: 

(1) in finding that Nan's Request for Review was based on the

content of the bid solicitation (Solicitation), such that the

Hearings Officer lacked jurisdiction to consider Nan's request;

(2) in ignoring the Hearings Officer's finding that she "can find

no language, nor can [BWS] or [Hawaiian Dredging] point to any

part of the Solicitation that clearly requires bidders to provide

specific [Horizontal Directional Drilling] experience"; and (3)

in granting deference to BWS and failing to determine whether

BWS's actions were consistent with the Hawai#i Procurement Code. 

We hold that the Circuit Court did not err: (1) in

ruling that the Hearings Officer lacked jurisdiction to consider

1/ The Honorable Jeffrey P. Crabtree presided. 

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Nan's Request for Review to the extent the request challenged the

validity and appropriateness of the experience requirements set

forth in the Solicitation; and (2) in exercising jurisdiction

over that part of Nan's Request for Review that was not based on

the contents of the Solicitation, i.e., Nan's claim that BWS

improperly determined that Nan was a nonresponsible bidder based

on an HDD experience requirement that was not stated in the

Solicitation. We further hold that the Circuit Court correctly

concluded that: (1) the Solicitation required bidders to submit

their HDD experience or its equivalent; and (2) BWS did not act

arbitrarily or capriciously in determining that Nan was a

nonresponsible bidder.

Accordingly, we affirm the Judgment.

I. Background

On April 7, 2021, BWS issued an Invitation for Bids and

accompanying solicitation documents for the Project (the

Solicitation or IFB) through the Hawaii eProcurement System

(HePS). As stated in the Solicitation, the work of the Project

involves the installation of a 24-inch water main and reservoir;

repaving and reconstruction at the installation area; and, among

other things, horizontal directional drilling (HDD) beneath an

existing stream for the new water main.

The Solicitation's "Special Instructions" on HePS

stated that bidders were required "to read and comply with . . .

other documents or specifications for the [S]olicitation whether

attached or referenced." The same Special Instructions also

stated that the "[S]olicitation contains attachments that bidders

must . . . [d]ownload[,] . . . [c]omplete[,] . . . and, [a]ttach"

to their bids; and that bids "shall be evaluated" based on those

documents. 

The Solicitation included Section SP-1, Instructions to

Bidders (SP-1), and several other referenced or attached

documents, including "General Instructions to Bidders" and a

"Contractor Questionnaire." The General Instructions to Bidders

and the Contractor Questionnaire were linked attachments to the

Solicitation on HePS. 

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Section 1.1(C) of the General Instructions to Bidders 

reflected BWS's intent to determine bidder responsibility based

on the Contractor Questionnaire:

Qualification Questionnaire. The Contracting Officer shall 

determine whether the bidder or prospective bidder has the

financial ability, resources, skills, capability, and

business integrity to perform the work intended. For this

purpose, the Contracting Officer may require any bidder or

prospective bidder to submit answers, under oath, to

questions contained in a questionnaire prepared by the

Contracting Officer. If upon review of the questionnaire or

otherwise, the bidder or prospective bidder appears not to

be fully qualified or able to perform the intended work, the

Contracting Officer shall, after affording the bidder an

opportunity to be heard and if still of the opinion that the

bidder is not fully qualified to perform the work, refuse to

receive or to consider any bid offered by the prospective

bidder. Failure to complete the questionnaire will be

sufficient cause for the Contracting Officer to disqualify a

bidder.

(Emphases added.) 

In turn, the Contractor Questionnaire set out specific

responsibility criteria, as follows:

Section 3-122-108 of the Hawaii Administrative Rules

provides that a determination of responsibility or

non-responsibility of an Offeror or prospective Offeror to

perform the work called for in the solicitation shall be

made by the procurement officer on the basis of available

information. It is the sole responsibility of the Offeror

to review the requirements of the Contractor Questionnaire

and complete the required forms in their entirety, and

ensure all responses are legible. Offerors must use the

forms provided herein and provide the completed forms with

their bid.

By submitting the Contractor Questionnaire, the Offeror

guarantees the truth and accuracy of all statements and

answers provided.

The Board of Water Supply (BWS) reserves the right to verify

any of the information provided and/or request additional,

clarifying or supplemental information.

For the Contractor Questionnaire's "FACTOR 1:

EXPERIENCE," bidders were required to complete data sheets for

three to five contracts they performed that were equal or

equivalent to the Project's scope of work as defined in SP-1. 

Under SP-1, the Project's scope of work included providing

"Horizontal Directional Drilling beneath existing stream for new

water main."

Bidders were instructed to raise any concerns about the

Solicitation's terms or requirements before bid opening. Section

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1.2 of the General Instructions to Bidders stated, in relevant

part: 

If it should appear to a prospective bidder that the

performance of the work under the contract or any of the

matters relative thereto is not sufficiently described or

explained in the Invitation for Bids, or that any

discrepancy exists between different parts of the Invitation

for Bids, or that the full intent of the Invitation for Bids

is not clear, then the bidder shall submit a written email

request for clarification not later than ten (10) calendar

days before the date fixed for opening of bids . . . ."

Nan submitted multiple questions to BWS, which were answered

through addenda to the Solicitation. Nan did not submit any

questions regarding BWS's responsibility criteria.

Nan submitted its bid on May 27, 2021, including the

Contractor Questionnaire and five data sheets. Nan's bid price

was the lowest among those submitted, but none of Nan's five data

sheets reflected experience in HDD. 

Accordingly, on June 11, 2021, BWS sent a request to

Nan to provide a prior contract that included HDD experience. 

In response, Nan provided a summary of a previous project that

included "microtunneling" installation. 

By letter dated June 18, 2021, BWS informed Nan that it

determined Nan was nonresponsible, because it "lacks the required

experience and is not fully qualified and able to perform the

intended work." The letter further stated, in part: 

While the five projects showed adequate experience working

with larger water mains and prestressed concrete reservoirs,

none of the projects included any relevant HDD-related work

experience.

On June 11, 2021, Nan was asked to submit one (1) additional

project Contract Data Sheet to satisfy the requirement of

equal or equivalent scope of work. Nan submitted one (1)

Contractor Questionnaire response amending their original

submission.

. . . .

BWS reviewed the additional information and determined that

micro-tunneling work was not equivalent to HDD-related work.

Therefore the additional contract information submitted by

Nan also failed to demonstrate equal or equivalent scope of

the Project as required to determine contractor

responsibility, thus rendering Nan non responsible.

Accordingly, although Nan submitted the low bid,

$18,570,704.70, it was disqualified from consideration for the

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contract award. The second-lowest bidder, Goodfellow Brothers,

LLC, whose bid was $20,636,745, was also disqualified. After BWS

applied all allowable bid evaluation credits, Hawaiian Dredging

(with a bid of $21,107,000) was deemed to be the lowest

responsive and responsible bidder, and entitled to the award. On

June 18, 2021, BWS awarded Hawaiian Dredging the contract for the

Project. 

On June 25, 2021, Nan filed its Request for Review with

the OAH. On the same date, Nan filed a protest with BWS on the

same grounds. Prior to June 25, 2021, Nan did not file a protest

regarding the Solicitation. 

Nan's Request for Review stated in part:

Nan files the instant request because, first, BWS is

required to make an award to the lowest responsive,

responsible bidder based on the criteria set forth in the

IFB. BWS improperly disqualified Nan's bid based on an

experience requirement not stated in the IBF [sic] and not

in conformance with the State law/procurement policy. To

the extent that the IFB does not set forth a specific

criteria, BWS is without any authority to create criteria

for evaluating a bid subsequent to bid opening. Secondly,

BWS' determination that Nan is non responsible was improper

and beyond what is legally permissible rendering its

decision, improper, arbitrary and capricious. . . .

Thus, Nan requests a decision by the Office of

Administrative Hearings, Department of Commerce and Consumer

Affairs, State of Hawaii ("OAH") to find and conclude the

following:

 1. BWS improperly determined that Nan is not a

responsible bidder failing to properly follow Hawaii

law, the Hawaii procurement code, specifically HRS

§ 103D-310, and its own IFB Specifications; 

 2. The experience requirements in BWS' Contractor

Questionnaire and its June 11, 2021 Request inquired

into areas beyond what is legislatively permissible

and what was established by the Procurement Policy

Board's Qualification Questionnaire;

 3. BWS wrongly awarded the Project to Hawaiian Dredging

when Hawaiian Dredging listed the same subcontractor

. . . as Nan to perform the HDD scope of work . . . ;

and

 4. Nan is the lowest, responsible, and qualified bidder

under the IFB for the subject Project.

. . . .

. . . .

. . . At no time prior to bid opening, was it

required, by the IFB or the Contractor Questionnaire, that a 

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prospective bidder submit its experience with respect to

HDD. . . .

. . . .

With this Request for Administrative Hearing, Nan also

seeks to expose a long-standing but unlawful practice of

requiring prospective bidders to show specific experiences

in regards to a bidder's responsibility to qualify to bid

and/or perform public works' projects. . . . 

(Emphases added.) 

In the administrative proceeding, on July 12, 2021, BWS

and Hawaiian Dredging filed motions to dismiss or, alternatively,

for summary judgment. On the same date, Nan filed a motion for

summary judgment. BWS and Hawaiian Dredging argued in part that

the OAH lacked jurisdiction over the matter because Nan's Request

for Review was untimely under HRS § 103D-701(a).2/ Specifically,

BWS and Hawaiian Dredging argued that Nan's protest was based

upon the content of the Solicitation, but was not submitted

within five working days after the Solicitation was issued, as

required by HRS § 103D-701(a). BWS and Hawaiian Dredging further

argued that Nan failed to present any issue of material fact that

BWS's determination of Nan's nonresponsibility was unreasonable,

arbitrary or capricious. Nan, on the other hand, argued that it

was not protesting the content of the Solicitation, but was

seeking "[to] hold BWS accountable to conduct its review based

solely on the criteria set for[th] in the IFB and for attempting

to disqualify Nan for a requirement not stated in the IFB." 

On July 16, 2021, the Hearings Officer heard arguments

on the parties' dispositive motions. Following the arguments,

2/ HRS § 103D-701(a) (2012) states:

(a) Any actual or prospective bidder, offeror, or contractor

who is aggrieved in connection with the solicitation or

award of a contract may protest to the chief procurement

officer or a designee as specified in the solicitation.

Except as provided in sections 103D-303 and 103D-304, a

protest shall be submitted in writing within five working

days after the aggrieved person knows or should have known

of the facts giving rise thereto; provided that a protest of

an award or proposed award shall in any event be submitted

in writing within five working days after the posting of

award of the contract under section 103D-302 or 103D-303, if

no request for debriefing has been made, as applicable;

provided further that no protest based upon the content of

the solicitation shall be considered unless it is submitted

in writing prior to the date set for the receipt of offers.

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all parties agreed that there were no disputed issues of material

fact and that an evidentiary hearing was not necessary. At that

time, the Hearings Officer stated: "I am inclined at this point

to find that I don't have jurisdiction regarding the [Contractor

Q]uestionnaire and the use of it, but I do have jurisdiction

regarding the June 18th determination of nonresponsibility."3/ 

The Hearings Officer took the matter under advisement and said

she would issue a written decision on whether she would grant

"either motion for summary judgment." 

On August 9, 2021, the Hearings Officer issued findings

of fact, conclusions of law and a final order granting Nan's

motion for summary judgment and denying BWS's and Hawaiian

Dredging's motions (Decision). The Decision stated in part: 

The Hearings Officer can find no language, nor can [BWS] or

[Hawaiian Dredging] point to any part of the Solicitation

that clearly requires bidders provide specific HDD

experience. . . . Accordingly, the Hearings Officer

concludes there is no requirement in [the] Solicitation that

a bidder have HDD experience.

The Decision also concluded that "the use of the Contractor

Questionnaire to determine responsibility was improper[,]" and

further stated:

Even if the Hearings Officer determined [BWS] was justified

in using its Contractor Questionnaire, it is unclear why the

Contractor Questionnaire includes an additional requirement

not included in the Solicitation, specifically, requiring

bidders, rather than subcontractors, to demonstrate HDD

experience. Based on the foregoing, the Hearings Officer

concludes that [Nan's] appeal is not based on the Contractor

Questionnaire, per se, but rather on [BWS's] determination

of nonresponsibility using criteria allegedly not included

3/ During oral argument the following relevant exchange had occurred:

HEARINGS OFFICER HIKIDA: . . . [Nan's counsel], based

upon the arguments from [BWS's counsel] and [Hawaiian

Dredging's counsel], regarding the contractor questionnaire,

obviously jurisdiction is important. We are here to

determine first -- your position is that the use of the

contractor questionnaire was improper.

How is it that this is a timely vented (indiscernible)

issue given that the contractor questionnaire was issued

reportedly with the invitation for bids?

[Nan's Counsel]: Our argument is that determining

responsibility based on this questionnaire is improper. So,

it's a determination. It's how BWS evaluated the contractor

questionnaire and then determined responsibility. It's not

the contractor questionnaire itself that we're protesting.

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in the IFB. Accordingly, the Hearings Officer concludes

that [Nan's] protest was not a protest based on the content

of the Solicitation.

Nan's Request for Review was thus deemed timely. 

Addressing the merits of Nan's request, the Hearings

Officer concluded that the Solicitation did not require bidder

HDD experience, and BWS's determination of nonresponsibility

based on Nan's failure to provide such experience was therefore

improper. Accordingly, the Hearings Officer vacated BWS's

determination of Nan's nonresponsibility and ordered that BWS's

contract award to Hawaiian Dredging be terminated. 

On August 18, 2021, Hawaiian Dredging filed its

application for judicial review (Application) in the Circuit

Court, and on August 19, 2021, BWS filed its substantive joinder

to the Application.

The Circuit Court received briefing and conducted a

hearing on September 15, 2021. On September 17, 2021, the

Circuit Court issued the FOFs/COLs/Order, which included the

following COLs:

28. Under HRS § 103D-701(a), once a bidder knows or

should know of the facts causing it to be "aggrieved,"

including facts arising out of the content of the

solicitation, the bidder must submit a written protest

within five working days. In addition, protests based upon

the content of the solicitation must be submitted prior to

bid opening.

29. Nan's Request for Review was based on the content

of the Solicitation, which was released on April 7, 2021. 

Accordingly, Nan's protest was due by April 14, 2021, but in

no event later than BWS'[s] May 27, 2021 bid opening. 

30. Nan did not raise any issues about the content of

the Solicitation/IFB before the bids were opened.

31. Because Nan did not request the required

information be clarified or amended prior to bidding, Nan

cannot raise the issue after the bids are opened. By law,

the Hearings Officer lacked jurisdiction to consider the

issue. 

32. An agency’s determination regarding a bidder's

responsibility "will be given wide discretion and will not

be interfered with unless the determination is unreasonable,

arbitrary or capricious." Browning-Ferris Industries of

Hawaii, Inc. v. State of Hawaii, Dept. of Transportation,

PCH-2000-4 at p. 11 (Jun. 8, 2000). 

33. BWS therefore had the discretion to make the

decision that Nan was not a "responsible" bidder due to Nan

not submitting evidence of any prior contract or project

that involved HDD. This informed decision by BWS was not

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arbitrary or capricious and was entitled to deference under

our law.

Based on these conclusions, the Circuit Court remanded

the case to the Hearings Officer, directing her to set aside the

Decision and to enter an order in accordance with the

FOFs/COLs/Order. The Circuit Court specified that "[t]he order

shall include a directive reinstating BWS'[s] Award of the

Contract to Hawaiian Dredging." 

This appeal followed.

II. Standard of Review

"The appellate standard of review of an administrative

hearings officer's decision is set forth in HRS § 103D–710(e)

(2012)." See Certified Constr., Inc. v. Crawford, 138 Hawai#i

315, 319, 382 P.3d 127, 131 (2016) (citing S. Foods Grp., L.P. v.

State, Dep't of Educ., 89 Hawai#i 443, 452, 974 P.2d 1033, 1042

(1999)). HRS § 103D–710(e) provides, in relevant part:

No later than thirty days from the filing of the application

for judicial review, based upon review of the record the

circuit court may affirm the decision of the hearings

officer issued pursuant to section 103D–709 or remand the

case with instructions for further proceedings; or it may

reverse or modify the decision and order if substantial

rights may have been prejudiced because the administrative

findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory

provisions;

(2) In excess of the statutory authority or

jurisdiction of the chief procurement officer or

head of the purchasing agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole

record; or

(6) Arbitrary, or capricious, or characterized by

abuse of discretion or clearly unwarranted

exercise of discretion[.]

"The existence of jurisdiction is a question of law

that [this court] review[s] de novo under the right/wrong

standard." Crawford, 138 Hawai#i at 319, 382 P.3d at 131

(brackets omitted) (quoting Pac. Lightnet, Inc. v. Time Warner

Telecom, Inc., 131 Hawai#i 257, 272, 318 P.3d 97, 112 (2013)).

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III. Discussion

A. Jurisdiction of the Hearings Officer

Nan contends that the Circuit Court erred in concluding 

that the Hearings Officer lacked jurisdiction to consider Nan's

Request for Review. Specifically, Nan argues that its June 25,

2021 Request for Review: (1) was based not on the content of the

Solicitation but on BWS's determination of nonresponsibility; and

(2) was timely filed within five working days of BWS's June 18,

2021 determination of nonresponsibility. 

HRS § 103D-701(a) provides that "[a]ny actual or

prospective bidder, offeror, or contractor who is aggrieved

in connection with the solicitation or award of a contract

may protest to the chief procurement officer or a designee as

specified in the solicitation." Generally, a protest must be

submitted "within five working days after the aggrieved person

knows or should have known of the facts giving rise thereto[.]" 

HRS § 103D–701(a). In any event, if the protest is from an award

decision, the protest must be submitted within five working days

after the posting of the award; if the protest challenges the

content of a solicitation, the protest must be submitted before

the date set for the receipt of offers. Id.; see Crawford, 138

Hawai#i at 319, 382 P.3d at 131. The latter deadline is

jurisdictional. See Crawford, 138 Hawai#i at 319-20, 382 P.3d at

131-32 ("With regard to challenges to the content of the

solicitation, the statute indicates the chief procurement officer

would not have jurisdiction to review the protest if the protest

was not submitted prior to the date set for offers to be

made[.]")

Here, after several postponements, the date set for the

receipt of offers, i.e., the "bid opening date," was May 27,

2021. By letter dated June 18, 2021, BWS informed Nan that BWS

had determined that Nan was nonresponsible and its bid would not

be considered. On June 25, 2021, Nan filed its Request for

Review in the OAH. Thus, for purposes of HRS § 103D-701(a), Nan

submitted its protest within five working days of BWS's

nonresponsibility determination, but not before the bid opening

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date. Whether Nan's Request for Review was timely under HRS

§ 103D-701(a) therefore depends on whether it is considered a

challenge to the nonresponsiblity determination or a challenge to

the content of the Solicitation. In other words, if the request

was based on the content of the solicitation, as the Circuit

Court ruled, the request was untimely and the OAH (and thus the

Hearings Officer) lacked jurisdiction to consider it.

In Crawford, the supreme court addressed the

distinction between a bid protest challenging the

disqualification of a bid and one challenging the contents of a

bid solicitation. 138 Hawai#i at 319-21, 382 P.3d 127, 131-33. 

There, the County of Hawai#i notified a contractor that its bid

proposal on a public works project was disqualified because the

proposal failed "to list a C-44–Sheet metal subcontractor or to

describe an alternate means and methods by which the work

required of this project covered by this license class would

otherwise be legally executed." Id. at 317, 382 P.3d at 129. 

The contractor submitted a protest letter to the county disputing

the contractor's disqualification and the rejection of its bid,

asserting that the sheet metal work required for the project

could be performed under the contractor's C-42 or C-44A licenses,

and nothing in the special notice referenced in the bid

solicitation strictly required a C-44 license. Id. The supreme

court ruled that the contractor's challenge was based on the

disqualification of its bid rather than the contents of the

solicitation. The court reasoned: "[Contractor's] protest does

not challenge or seek modification of the requirements of the Bid

Solicitation; rather it explains [Contractor's] interpretation of

the requirements of the Bid Solicitation and why it satisfied the

Bid Solicitation." Id. at 320, 382 P.3d at 132. The court

further explained:

The ICA majority concluded that [Contractor's] bid protest

was "based upon the content of the Bid Solicitation because

it necessarily challenges and seeks to omit material terms

of the Bid Solicitation," including Special Instruction #2. 

However, [Contractor] did not seek to modify, erase, or

dispute the appropriateness of Special Instruction #2;

rather, it sought to challenge the disqualification of its

bid based on what it perceived as an erroneous

interpretation of Special Instruction #2 by the County. 

Regardless of the actual meaning of Special Instruction #2

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and [Contractor's] compliance or noncompliance with that

term, [Contractor] did not seek a revision of any terms of

the Bid Solicitation. In other words, merely because a

protest implicates an interpretation of the bid

solicitation, it does not mean that it necessarily

challenges the contents of the bid solicitation. There is a

significant distinction between the contention that the

terms of a bid solicitation are invalid and the contention

that the terms of the solicitation are being misinterpreted

and thus misapplied.

Id. at 320-21, 382 P.3d at 132-33. 

Here, Nan's Request for Review, fairly read, advanced

two sets of arguments. First, Nan argued that BWS improperly

determined that Nan was not a responsible bidder based on a

requirement of HDD experience that was not stated in the

Solicitation. For example, Nan alleged in part: 

At no time prior to bid opening, was it required, by the IFB

or the Contractor Questionnaire, that a prospective bidder

submit its experience with respect to HDD. Section SP 29.4

of the IFB discussed the specifications of the HDD scope of

work for the Project. Nowhere in this section did it

discuss any prior experience criteria necessary to perform

this scope of work. The only responsibility criteria

required in the IFB specifications was that the contractor

submit qualifications for the HDD work force to BWS 60 days

prior to mobilization of any HDD equipment. Nan reasonably

relied on this language in the IFB, understanding that its

only responsibility as it related to HDD was after award and

60 days prior to the start of the HDD work. . . .

Second, Nan challenged the validity and appropriateness

of the experience requirements set forth in the IFB and the

Contractor Questionnaire. For example, Nan alleged:

• "The experience requirements in BWS'[s] Contractor

Questionnaire . . . inquired into areas beyond what is

legislatively permissible and what was established by

the Procurement Policy Board's Qualification

Questionnaire[.]" 

• "Nan also seeks to expose a long-standing but unlawful

practice of requiring prospective bidders to show

specific experiences in regards to a bidder's

responsibility to qualify to bid and/or perform public

works' projects."

• "The legislature never intended and in fact never

authorized procurement officers from [sic]

establishing strict specific and arbitrary experience

requirements." 

• "The instant Solicitation does not comport with HRS

§ 103D-310(b) nor HAR § 3-122-109 and goes well beyond

the legislative intent . . . ." 

• "To add this [HDD] experience requirement . . . is

arbitrary and capricious in evaluating whether the

subcontractor who every prospective offeror listed,

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Island Mechanical Corporation, can perform the [HDD]

work." 

Appellees focus on this second set of arguments in characterizing

the Request for Review as a challenge to the content of the

Solicitation. But that is only half the picture.

The first set of arguments challenged BWS's

nonresponsibility determination based on Nan's interpretation of

the Solicitation documents and Nan's related conclusion that the

documents did not require HDD experience. Regardless of the

actual meaning of the IFB and the Contractor Questionnaire, and

Nan's compliance or noncompliance with the documents' experience

requirements, this first set of arguments did not challenge or

seek revision of any terms of the Solicitation. See Crawford,

138 Hawai#i at 320, 382 P.3d at 132. While Appellees dispute

Nan's interpretation of the Solicitation documents and Nan's

alleged disregard of the documents' HDD experience requirements,

under Crawford, this dispute does not change the nature of this

part of Nan's protest – that it was determined to be a

nonresponsible bidder based on an HDD experience requirement that

was not stated in the Solicitation. See id. Nan's Request for

Review was thus timely as to this first set of arguments, which

was based on the disqualification of Nan's bid rather than the

content of the Solicitation. 

In contrast, Nan's second set of arguments plainly

challenged the validity and appropriateness of the experience

requirements set forth in the IFB and the Contractor

Questionnaire. This set of arguments is readily distinguishable

from the protest in Crawford, which "d[id] not challenge or seek

modification of the requirements of the Bid Solicitation[.]" Id. 

Here, by challenging the validity and appropriateness of the

experience requirements of the Solicitation, Nan challenged its

contents. If Nan believed that the experience requirements in

the IFB and the Contractor Questionnaire were unlawful or

otherwise inappropriate, then pursuant to HRS § 103D-701(a), Nan

was required to submit its protest within five working days of

the April 7, 2021 posting of the Solicitation, i.e., April 14,

2021, and in any event before the May 27, 2021 bid opening date. 

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Nan did not do so.

The OAH has explained the purpose of this time

constraint as follows: 

HRS § 103D-701 specifically requires that protests based on

the content of a solicitation be submitted prior to the date

set for the receipt of offers so as to minimize disruption

to procurement and contract performance. The requirement

was designed to provide governmental agencies with the

opportunity to correct deficiencies in the bid documents

early in the solicitation process in order to "minimize the

disruption to procurements and contract performance[".] The

possibility of having to reject all bids, cancel the

solicitation and resolicit may be avoided by requiring the

correction of such deficiencies prior to the bid submission

date.

Paradigm Constr. LLC v. Dept. of Hawaiian Home Lands, State of

Hawaii, PCH-2009-16, at 9 (Off. Admin. Hearings, Haw. Dep't Comm.

& Consumer Aff. Oct. 7, 2009) (citation omitted). 

In this case, a timely protest by Nan would have given

BWS the opportunity to review the merits of the protest and amend

the Solicitation as appropriate or, if necessary, cancel the

Solicitation and resolicit the project with revised

responsibility or experience requirements. Alternatively, Nan

could have sought clarification of the experience requirements

related to the Contractor Questionnaire. Instead, Nan waited

until after it was determined to be a nonresponsible bidder and

the contract was awarded to Hawaiian Dredging before challenging

the experience requirements of the Solicitation. Under HRS §

103D-701, Nan's challenge to the validity and appropriateness of

these experience requirements was untimely. The OAH thus lacked

jurisdiction over that part of the Request for Review.

Accordingly, in its COLs 28 through 31, the Circuit

Court did not err in ruling that the Hearings Officer lacked

jurisdiction to consider Nan's Request for Review to the extent

the request challenged the validity and appropriateness of the

experience requirements set forth in the Solicitation. Moreover,

in COLs 32 and 33, the Circuit Court addressed the merits of

Nan's arguments that were not based on the contents of the

Solicitation, i.e., that BWS improperly determined that Nan was a

nonresponsible bidder based on an HDD experience requirement that

was not stated in the Solicitation.

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For the reasons discussed above, the Circuit Court did

not err in exercising jurisdiction over this part of Nan's

Request for Review.

B. The Solicitation's HDD Experience Requirement

Nan contends that the Circuit Court erred in ignoring

the Hearings Officer's "finding of fact" that she "can find no

language, nor can [BWS] or [Hawaiian Dredging] point to any part

of the Solicitation that clearly requires bidders to provide

specific HDD experience." Relatedly, Nan appears to challenge

FOF 15, in which the Circuit Court stated:

15. To summarize:

a. The Solicitation included SP-1, which in its

Scope of Work specifically included the specific

and separate item of HDD (beneath a stream).

b. The Solicitation documents specifically included

a Contractor Questionnaire, which expressly

stated that bidders shall provide information

about 3-to-5 prior performed contracts. 

"Relevant" contracts were defined as contracts

that were "equal or equivalent" to the SP-1

Scope of Work for the instant Project.

c. The Contractor Questionnaire and SP-1 are part

of the Solicitation. Accordingly, the

Solicitation required bidders to submit their

HDD experience or its equal or equivalent.

As a threshold matter, Nan incorrectly characterizes

the Hearings Officer's conclusion of law — that she "can find no

language [in] the Solicitation" that requires bidders to provide

HDD experience — as a finding of fact. The interpretation of a

bid solicitation, like the interpretation of a public contract,

is a question of law that is reviewed de novo. See Provident

Funding Assocs. v. Gardner, 149 Hawai#i 288, 296, 488 P.3d 1267,

1275 (2021) ("The construction and legal effect to be given a

contract is a question of law freely reviewable by an appellate

court." (quoting Balogh v. Balogh, 134 Hawai#i 29, 37, 332 P.3d

631, 639 (2014))); Found. Int'l, Inc. v. E.T. Ige Constr., Inc.,

102 Hawai#i 487, 494-95, 78 P.3d 23, 30-31 (2003) (same, applied

to a public contract); see also VS2, LLC v. U.S., 155 Fed. Cl.

738, 759 n.17 (2021) ("Interpretation of [a bid] solicitation is

a question of law that is reviewed de novo." (quoting Per

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Aarsleff A/S v. U.S., 829 F.3d 1303, 1309 (Fed. Cir. 2016)

(internal quotation marks omitted))); NVT Technologies, Inc. v.

U.S., 370 F.3d 1153, 1159 (Fed. Cir. 2004) (bid protest action: 

"The interpretation of a contract or solicitation is a question

of law which we review de novo." (citing other Federal Circuit

cases)). 

For this reason, the Circuit Court's FOF 15 is also a

conclusion of law, inasmuch as the court was construing the

Solicitation documents in determining that the Contractor

Questionnaire and SP-1 were "part of the Solicitation[,]" and the

Solicitation required bidders to submit their HDD experience or

its equal or equivalent. It thus appears that the Circuit Court

determined that the Hearings Officer erred in concluding that

"there is no requirement in [the] Solicitation that a bidder have

HDD experience."

The Circuit Court was correct. As the Hearings Officer

found, the Contractor Questionnaire was an attachment to the

IFB,4/ the Contractor Questionnaire required bidders to submit

experience on three to five contracts that were equal or

equivalent to the Project's scope of work,5/ and the scope of work

described in the IFB (per SP-1) included HDD.6/ The Solicitation

4/ In the Decision, the Hearings Officer found: "[A]ttached to the

IFB are the following file attachments: Job 21-053A Contractor Questionnaire

. . . ." Decision, FOF 3 (formatting altered); see id. FOF 6 ("The Contractor

Questionnaire attached to the IFB . . . .").

5/ In the Decision, the Hearings Officer quoted the following

language in the Contractor Questionnaire: 

FACTOR 1: EXPERIENCE 

A Contract Data Sheet (Attachment 1) shall be completed for

a minimum of three (3) and maximum of five (5) contracts

performed that are equal or equivalent to this project's

scope of work as defined in SP-01 Instruction to Bidders,

including but not limited to BWS projects.

Decision, FOF 6.

6/ In the Decision, the Hearings Officer quoted the following

language from the IFB, SP-1, Instructions to Bidders:

1. SCOPE OF WORK:

 A. Transmission Main

 . . . .

continue...

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thus required bidders to submit their HDD experience or its equal

or equivalent. Nevertheless, the Hearings Officer decided

otherwise, apparently based on the conclusion that the Contractor

Questionnaire was not part of the Solicitation.7/

The Hearings Officer erred in concluding that the

Contractor Questionnaire was not part of the Solicitation. The

Solicitation's Special Instructions on HePS stated that the

"[S]olicitation contains attachments that bidders must . . .

[d]ownload[,] . . . [c]omplete[,] . . . and, [a]ttach" to their

bids; and that bids "shall be evaluated" based on those

documents.8/ The General Instructions to Bidders and the

Contractor Questionnaire were linked attachments to the IFB. In

addition, the General Instructions to Bidders made clear that BWS

intended to determine bidder responsibility based on the

Contractor Questionnaire. Based on the plain language of the

Solicitation and accompanying instructions, the Circuit Court

correctly concluded that the Contractor Questionnaire was part of

the Solicitation. The Hearing Officer erred in concluding

6/ ...continue

 f. Provide Horizontal Directional Drilling beneath

existing stream for new water main.

Decision, FOF 5.

7/ This conclusion necessarily follows from statements made in the

Decision, including: 

• "Even if the Hearings Officer determined [BWS] was

justified in using its Contractor Questionnaire, it is

unclear why the Contractor Questionnaire includes an

additional requirement not included in the

Solicitation . . . ."

• "In this case, [BWS] deemed [Nan] nonresponsible for

failing to provide HDD-related work experience in

response to the Contractor Questionnaire. The

Solicitation does not require bidder HDD experience." 

8/ See State v. Hawaiian Dredging Co., 48 Haw. 152, 174, 397 P.2d

593, 606 (1964) ("Incorporation by reference makes the subject matter referred

to as much a part of that which incorporates it as though set forth therein at

full length."); Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1428 (9th Cir. 1986)

(applying Hawai#i law: "When a document incorporates outside material by

reference, the subject matter to which it refers becomes part of the

incorporating document just as if it were set out in full.").

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otherwise.9/

Similarly, based on the plain language of the

Solicitation, including Section SP-1 and the Contractor

Questionnaire, the Circuit Court correctly concluded that the

Solicitation required bidders to submit their HDD experience or

its equal or equivalent. The Hearings Officer erred in

concluding otherwise.10/

C. BWS's Discretion in Determining Bidder Responsibility

Citing Browning-Ferris Industries of Haw., Inc. v.

State of Haw., Dept. of Transp., PCH-2000-4, at 11 (Off. Admin.

Hearings, Haw. Dep't Comm. & Consumer Aff. June 8, 2000), Nan

acknowledges that a procuring agency should be given "wide

discretion" in determining a bidder's responsibility, and that

the agency's determination "will not be interfered with, unless

[it] is unreasonable, arbitrary or capricious." Nan contends,

however, that the Circuit Court erred in "grant[ing] deference"

to BWS and failing to determine whether BWS's actions were

consistent with the Hawai#i Procurement Code. Relatedly, Nan

challenges COL 33, in which the Circuit Court concluded:

33. BWS . . . had the discretion to make the decision

that Nan was not a "responsible" bidder due to Nan not

submitting evidence of any prior contract or project that

involved HDD. This informed decision by BWS was not

arbitrary or capricious and was entitled to deference under

law.

Nan appears to argue that BWS acted arbitrarily and capriciously

based on a "contrived reading of the Solicitation" that was not

intended by the legislature. 

For the reasons discussed above, we have determined

that the Solicitation required bidders to submit three to five

prior contracts involving equal or equivalent work to that of the

9/ To the extent this conclusion – that the Contractor Questionnaire

was not part of the Solicitation – can be viewed as a mixed issue of fact and

law, it is clearly erroneous. In this regard, we also note that in the

administrative proceeding, BWS submitted an uncontested declaration by its

Procurement and Specifications Specialist that the Contractor Questionnaire

was "part" of the Solicitation. 

10/ To the extent this conclusion – that the Solicitation did not

require bidders to submit their HDD experience or its equal or equivalent –

can be viewed as a mixed issue of fact and law, it is clearly erroneous.

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Project. BWS's reading and implementation of these experience

requirements was not "contrived," arbitrary or capricious. To

the extent that Nan is challenging the validity of the

Solicitation's experience requirements as contrary to legislative

intent, the Hearings Officer lacked jurisdiction to consider that

issue, for the reasons previously discussed.

Nan does not otherwise appear to challenge the Circuit

Court's conclusion that BWS did not act arbitrarily or

capriciously in determining that Nan was not a responsible bidder

due to its not submitting evidence of any prior contract or

project that involved HDD. Indeed, Nan asserts that "[t]he issue

here is not whether Nan is a responsible bidder." Accordingly,

the Circuit Court correctly concluded that BWS's

nonresponsibility determination was not arbitrary or capricious. 

IV. Conclusion

For the reasons discussed above, we affirm the

September 17, 2021 Judgment, entered by the Circuit Court of the

First Circuit.

On the briefs:

Wyeth M. Matsubara and

Micah P.K. Aiu

for Petitioner-AppelleeAppellant.

Keith Y. Yamada and

Jeffrey M. Osterkamp

(Cades Schutte LLP)

for Intervenor-AppellantAppellee

David J. Minkin and

Jordan J. Kimura

(McCorriston Miller Mukai

MacKinnon LLP) 

for Respondent-AppelleeAppellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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