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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

ALPHA, INC., 

Petitioner and Respondent/Appellant-Appellant, 

vs. 

BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU, 

Respondent and Petitioner/Appellee-Appellee, 

and 

OFFICE OF ADMINSITRATIVE HEARINGS, 

DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAIʻI, 

Respondent/Appellee-Appellee, 

and 

BEYLIK/ENERGETIC A JV, 

Respondent/Appellee-Intervenor-Appellee. 

SCWC-22-0000585 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-22-0000585; CASE NO. 1CCV-22-0000929) 

SEPTEMBER 4, 2024 

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ., 

OPINION OF THE COURT BY EDDINS, J. 

Electronically Filed

Supreme Court

SCWC-22-0000585

04-SEP-2024

09:50 AM

Dkt. 31 OP
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I.

In this procurement dispute, we examine Hawaiʻi Revised 

Statutes §§ 103D-302(b) (2012 & Supp. 2021) and 103D-709(d)

(Supp. 2021), two Hawaiʻi public procurement code laws. 

A procuring agency, the Honolulu Board of Water Supply,

(BWS) solicitated bids for a multi-million-dollar well-drilling 

project. It disqualified a bidder. Then it awarded the 

contract to the project’s only other bidder. The ineligible 

bidder challenged the decision administratively and then 

judicially. Because the bidder did not have the proper 

contractor’s license, and received no waiver, it lost each time. 

Along the way, BWS maintained that the administrative 

hearings officer and the courts lacked jurisdiction to hear the

procurement protest. The challenge should’ve gone nowhere. We 

agree.

A bidder who protests a contract award is entitled to a 

hearing “provided that[] . . . [f]or contracts with an estimated 

value of $1,000,000 or more, the protest concerns a matter that 

is equal to no less than ten per cent of the estimated value of 

the contract.” Hawaiʻi Revised Statutes (HRS) § 103D-709(d)(2). 

The law’s plain words firmly limit who may initiate a 

procurement appeal. In Hawaiʻi’s public procurement code, there

is no prudential consideration - a standing matter possibly 

waived - to secure review. Rather, the law’s ten percent 
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requirement is jurisdictional. Here, because the bidder could 

not satisfy the ten percent limit, no jurisdiction existed to 

initiate an administrative review hearing.

II.

In April 2022, the Board of Water Supply posted a 

solicitation for the construction of three exploratory wells on

Oʻahu. The work included a line item for tree trimming and 

removal.

The solicitation scope of work described BWS’s many 

conditions for clearing on-site vegetation. The solicitation 

specified that a C-27 license was required for tree trimming and 

removal, albeit obliquely. It said, “[p]rior to removal or 

trimming of trees by a contractor with a valid C-27/C-27B 

license, a bird nest survey will be conducted by a biologist 

provided by the BWS.” (Emphasis added.)

The solicitation contained several environmental 

conditions, including supervision of tree removal by an arborist 

and bird biologist. The solicitation asked contractors to 

minimize movement of plant material to mitigate the spread of 

invasive plant species. It also required that the contractor 

“protect from injury and damage all surrounding trees, plants, 

etc., and shall leave all in as good as condition as at 

present.”
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In May 2022, Alpha, Inc. bid $5.97 million for the work. 

It bested the only other bidder, Beylik/Energetic A JV (Beylik),

by about $7,000. Alpha’s bid included $95,000 for tree trimming 

and removal. 

Problems for Alpha surfaced. Alpha had a C-17 excavating 

license, but not a C-27 landscaping license. Also, Alpha did 

not name a landscaping subcontractor in its bid. On May 13, 

2022, BWS announced it had awarded the contract to Beylik.

On May 17, 2022, BWS sent Alpha a bid rejection letter. 

BWS’s reasoning was faulty. The letter incorrectly stated that 

bidders did not have to list subcontractors with less than one 

percent of the work. It also said the tree trimming and removal 

– worth $95,000 – totaled more than one percent of the bid, and 

so did not qualify for this purported exception. Thus, Alpha’s 

bid was nonresponsive. 

The following day, Alpha sent a bid protest letter to BWS. 

Alpha argued both that its bid was responsive and that Beylik’s 

bid was nonresponsive because Beylik forgot to include a form. 

In this letter, Alpha indicated that it would do the tree 

removal itself and use a subcontractor for the tree trimming. 

The sub’s trimming portion was $6,800, far less than one percent 

of the bid amount.

That same day, a BWS employee emailed the Contractors 

License Board (CLB), asking whether a C-17 licensee may remove 
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trees. A CLB official replied that in one Board member’s nonbinding opinion, a C-17 licensee may generally perform tree 

removal. 

On June 7, 2022, BWS rejected Alpha’s protest. BWS pointed 

to HRS § 103D-302(b). That law says construction bids must list 

all subcontractors, but that the government entity may waive 

this requirement if it’s in the public’s best interest and the 

missing sub had less than one percent of the work. Because it 

didn’t list its subcontractor, Alpha flunked this requirement, 

BWS ruled. Next, BWS reasoned that waiving the condition was 

not in the public’s best interest - Alpha’s bid was just 0.13

percent lower than Beylik’s. 

BWS also rejected Alpha’s position that its C-17 license 

entitled it to remove trees. For the well project, BWS cited a 

determination by the CLB that a C-27 contractor was needed to 

destroy tree roots without disturbing the surrounding soil in 

vegetated areas. The solicitation expressly asked for a C-27 

licensee to remove trees. Alpha had no C-27 license. Thus, 

Alpha could not remove trees on its well project, BWS decided.

For these two reasons, BWS disqualified Alpha’s proposal.

BWS also rejected Alpha’s challenge to Beylik’s bid. It 

said Alpha lacked standing to attack Beylik’s bid, because Alpha 

was out, disqualified. On the substance, BWS ruled that 

Beylik’s missing form was immaterial.
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In June 2022, per HRS § 103D-709(d), Alpha requested an 

administrative hearing review of BWS’s decision. Alpha repeated 

the arguments it made to BWS. 

BWS moved to dismiss. BWS made the ten percent 

jurisdictional argument it raises before this court. 

In July 2022, the Office of Administrative Hearings (OAH) 

issued its decision. OAH concluded that the ten percent 

requirement is not jurisdictional and that it had jurisdiction 

to hear Alpha’s appeal.

On the merits, OAH noted that HRS § 103D-302(b) requires 

construction bidders to list subcontractors (and that BWS’s

rejection letter got this wrong). OAH also explained that this 

solicitation demanded a C-27 contractor for the tree removal 

because of the project’s specific ecological needs.

The hearings officer concluded that Alpha could perform 

some, but not all, of the project’s tree-related work. The 

officer also found that Alpha did not request a waiver of the <1 

percent subcontractor listing requirement and BWS, in its 

discretion, did not grant a waiver. Thus, Alpha’s bid was 

nonresponsive.

Alpha appealed to the circuit court. The parties briefed 

the issues, and the court held a hearing. 

In September 2022, Circuit Court of the First Circuit Judge 

James Ashford affirmed the OAH and BWS decisions. To do tree 
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removal on the well project, the solicitation reasonably 

required a C-27 license. Alpha didn’t have a C-27, or list a 

subcontractor with one. Given the environmental needs of the 

project, the court reasoned, BWS could demand a C-27 licensee. 

So Alpha’s bid was nonresponsive.

The court rejected Alpha’s argument that BWS was estopped 

by statements in its bid rejection letter. Estoppel requires 

detrimental reliance. Because Alpha submitted its bid before 

the letter, there was no reliance on the letter and no estoppel.

The circuit court opted not to address BWS’s argument that 

the hearings officer lacked jurisdiction to hear Alpha’s appeal.

Alpha appealed to the ICA. It made the same argument there 

that it makes now. Alpha could remove the trees itself and was 

not required to list a tree trimming subcontractor with less 

than one percent of the contract value.

In December 2023, the ICA published an opinion. It 

affirmed.

The ICA read HRS § 103D-302 the same way OAH, the circuit 

court and BWS did: construction bidders must list all 

subcontractors, but the procuring agency may waive this 

requirement if it’s in the State’s interest and the subs have 

less than one percent of the work. The ICA affirmed OAH’s and 

the circuit court’s conclusions that (1) BWS did not waive the 
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listing requirement, and (2) BWS was not estopped from enforcing 

the requirement. 

The ICA addressed the Board of Water Supply’s 

jurisdictional challenge. OAH had jurisdiction to hear Alpha’s 

appeal. HRS § 103D-709(a) confers jurisdiction on OAH to 

“review and determine de novo, any request from any bidder, 

offeror, contractor[] . . . aggrieved by a determination of the 

chief procurement officer, head of a purchasing agency, or a 

designee of either officer.” In the ICA’s view, subsection (a) 

establishes OAH’s jurisdiction. 

In contrast, the ICA read HRS § 103D-709(d)(2) as a 

standing rule. That subsection states that any “bidder, 

offeror, contractor, or person that is a party to a protest of a 

solicitation . . . may initiate a proceeding under this section; 

provided that[]” the ten percent limit is met. Because 

subsection (d) concerns a party’s right to bring suit, the ICA 

believed it relates to standing. 

The ICA drew standing’s meaning from Tax Found. of Hawaiʻi 

v. State: “In Hawaiʻi state courts, standing is a prudential 

consideration regarding the ‘proper — and properly limited — 

role of courts in a democratic society’ and is not an issue of 

subject matter jurisdiction.” 144 Hawaiʻi 175, 188, 439 P.3d 

127, 140 (2019). The ICA concluded that Alpha satisfied HRS 
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§ 103D-709(a)’s jurisdiction requirement, and that BWS did not 

challenge Alpha’s standing under HRS § 103D-709(d). 

Alpha and BWS filed dueling cert petitions. Both reprised

their positions. Alpha appealed its disqualification. BWS 

appealed the ICA’s holding that HRS § 103D-709(d)’s ten percent 

threshold concerned standing, not jurisdiction. We accepted 

both sides’ certs.

III.

HRS § 103D’s ten percent requirement is jurisdictional and 

Alpha did not satisfy the requirement. We therefore conclude

that the Office of Administrative Hearings and our courts lacked 

jurisdiction to review BWS’s decision. 

To provide guidance, we also address the merits of Alpha’s 

appeal. The Board of Water Supply properly disqualified Alpha’s 

bid. 

A. The ten percent requirement is jurisdictional

We first address the ICA’s holding that HRS § 103D-709(d)’s 

ten percent appeal requirement relates to standing, not 

jurisdiction. 

The ICA erred. HRS § 103D-709(d) is not a prudential 

standing requirement that an administrative hearings officer or 

court may waive. Rather, the procurement code’s ten percent 

limit is the legislature’s jurisdictional command - a fixed and 

firm threshold to initiate a protest. 
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 Statutory interpretation starts with the statute’s words. 

Barker v. Young, 153 Hawaiʻi 144, 148, 528 P.3d 217, 221 (2023). 

Our main duty is to determine and advance the legislature’s 

intent. Id. Ambiguity arises when there is more than one 

plausible textual meaning. Id. To clarify ambiguity, we 

consider sources outside the text, such as legislative history 

or the purpose and spirit of the law. Id. Statutory 

construction doctrines may also aid us. Id. at 149, 528 P.3d at 

222. 

The ICA used the plain text to reach its conclusion that 

the ten percent requirement is not jurisdictional. HRS § 103D709(a) uses the word “jurisdiction.” HRS § 103D-709(d) does 

not. Thus, subsection (d) and its ten percent requirement does 

not involve jurisdiction. The ICA also flags subsection (d)’s 

language that limits the parties who “may initiate a 

proceeding.” That sounds like standing, says the ICA. 

Here is the text of HRS § 103D-709(a) and (d): 

(a) The several hearings officers appointed by the director 

of the department of commerce and consumer affairs pursuant 

to section 26-9(f) shall have jurisdiction to review and 

determine de novo, any request from any bidder, offeror, 

contractor, or person aggrieved under section 103D-106, or 

governmental body aggrieved by a determination of the chief 

procurement officer, head of a purchasing agency, or a 

designee of either officer under section 103D-310, 103D701, or 103D-702.

. . . . 

(d) Any bidder, offeror, contractor, or person that is a 

party to a protest of a solicitation or award of a contract 

under section 103D-302 or 103D-303 that is decided pursuant 
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to section 103D-701 may initiate a proceeding under this 

section; provided that: 

(1) For contracts with an estimated value of less 

than $1,000,000, the protest concerns a matter that is 

greater than $10,000; or

(2) For contracts with an estimated value of 

$1,000,000 or more, the protest concerns a matter that 

is equal to no less than ten per cent of the estimated 

value of the contract. 

(Emphases added.) 

True, because subsection (d) talks about who may initiate a 

proceeding, it is phrased like a standing requirement. But that 

does not necessarily make it a standing matter. 

Tax Foundation stated that standing often depends on 

statutes. 144 Hawaiʻi at 188, 439 P.3d at 140. This court has 

repeatedly ruled that standing requirements may be “prescribed[] 

by legislative declarations of policy.” Id. Thus, “standing 

requirements can differ based on legislative enactments.” Id. 

This court considers pertinent statutes to determine 

standing. Sierra Club v. Dep’t of Transp., 115 Hawaiʻi 299, 319, 

167 P.3d 292, 312 (2007). For instance, Tax Foundation held 

that the common law “injury in fact” test does not apply to 

declaratory judgment plaintiffs under HRS Chapter 632, because 

that test conflicts with the legislature’s intent in enacting 

Chapter 632. 144 Hawaiʻi at 188-89, 439 P.3d at 140-41. 

Here, the ICA used the wording of HRS § 103D-709 to rule 

that § 709(d) relates to standing, not jurisdiction. Then it 

quoted Tax Foundation: “In Hawaiʻi state courts, standing is a 
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prudential consideration regarding the ‘proper — and properly 

limited — role of courts in a democratic society’ and is not an 

issue of subject matter jurisdiction.” 144 Hawaiʻi at 188, 439 

P.3d at 140. Thus, the ICA held that the ten percent 

requirement is a prudential standing matter.

We are unpersuaded by this reasoning because it contradicts 

HRS § 103D-709(d)’s text and purpose. Construed as a prudential 

standing requirement, HRS § 103D-709 becomes fuzzy, losing its 

uncomplicated meaning. Reading HRS § 103D-709(d) as a flexible 

standing requirement, like the ICA does, creates discord between 

the prudential nature of standing in Hawaiʻi courts and 

subsection (d)’s straightforward ten percent requirement. The 

legislature tightly limits procurement appeals involving 

million-dollar contracts. Those disputes must involve “no less 

than ten per cent” of the contract’s value. 

HRS § 103D-709(d)’s text controls. The ten percent 

requirement is firm, not stretchy. Two reasons support our view 

that HRS § 103D-709(d)(2) relates to jurisdiction, not standing.

First, the text says so. There is no carve-out for a 

hearings officer to waive the ten percent requirement (unlike 

HRS § 103D-302(b)’s carve-out for an agency to waive the 

subcontractor listing requirement). HRS § 103D-709 does not 

provide for any exceptions. 
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Further, setting an amount-in-controversy minimum is a 

classic tool to define jurisdiction. Hawaiʻi’s district courts 

have jurisdiction over civil matters worth less than $40,000. 

HRS § 604-5 (2016). Otherwise, the matter belongs in a Hawaiʻi 

circuit court. HRS § 603-21.5 (2016 & Supp. 2017). Similarly, 

federal diversity jurisdiction is only available if a party can 

make a claim for more than $75,000. 28 U.S. Code § 1332. The 

$75,000 minimum is understood as jurisdictional even though it 

limits who may bring a diversity suit in federal court. 

In Hawaiʻi, standing typically focuses on the party seeking 

relief, not on the issues the party wants adjudicated. Citizens 

for Prot. of N. Kohala Coastline v. Cnty. of Hawaiʻi, 91 Hawaiʻi 

94, 100, 979 P.2d 1120, 1126 (1999). HRS § 103D-709(d) focuses 

on both. The section’s first part discusses the party. It says 

a “person that is a party to a protest . . . may initiate a 

proceeding.” But subsection (d)(2) focuses on the issue. It 

requires that “the protest concerns a matter” worth ten percent. 

Given the ten percent requirement’s straightforward meaning, we 

are unconvinced that the “may initiate a proceeding” language 

shifts the requirement from firm jurisdiction to flexible 

standing. 

Second, over the years, the legislature has frequently 

expressed an intent to streamline procurement award appeals. A 

hard-and-fast ten percent requirement aligns with that mindset. 
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The legislature’s purpose in enacting the ten percent limit 

was to constrain the number of procurement appeals, thereby 

allowing the government to procure faster and more cheaply. 

Other procurement code provisions and legislative history guide 

our conclusion. 

First, a review of the procurement code reveals that the 

legislature structured the procurement appeal process with speed 

and finality as the goal. The first two levels of procurement 

review delay the government’s ability to complete the purchase. 

To start, an unhappy bidder sends a protest to the procuring 

agency. HRS § 103D-701(a) (2012 & Supp. 2021). The protest 

pauses the purchase. HRS § 103D-701(f). Next, if a party loses 

that protest, it may initiate an administrative hearing, subject 

to the ten percent requirement. HRS § 103D-709(d). The 

administrative proceeding also stays the procurement. HRS 

§ 103D-709(h). 

When a party loses its OAH case, it may seek review in 

circuit court. HRS § 103D-710(a) (2012). A court case doesn’t 

stay the procurement. HRS § 103D-710(b). But the procurement 

code expedites the circuit court’s review. It mandates that the 

circuit court schedule the case as expeditiously as practicable. 

HRS § 103D-710(d). It limits the ability to introduce new 

evidence outside the administrative record. Id. It directs the 

circuit court issue a decision within thirty days, or lose 
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jurisdiction. HRS § 103D-710(e). A party that loses at the 

circuit court may appeal to the ICA, where “the appeal shall be 

given priority.” HRS § 103D-710(f). 

Procurement appeals differ from ordinary cases. The 

legislature has fast-tracked them. The reason is simple and 

practical - the government entity needs to complete its projects 

without costly delays. The legislature has often expressed this 

goal in its committee reports and statements of purpose. 

The legislature first enacted HRS § 103D-709 in 2009 as 

part of a broader procurement code revision. The legislature’s 

conference committee report identified the main purpose of the 

late-aughts update: to “expedite Hawaiʻi’s ability to use and 

benefit from federal economic stimulus funds.” Conf. Comm. Rep. 

No. 45, in 2009 House Journal, at 1595. The bill, H.B. 1470 

(Act 175), made several changes, all prioritizing speed. It 

increased the number of contracts that qualify for expedited 

small purchase procedures. Conf. Comm. Rep. No. 45, in 2009 

House Journal, at 1596. It curtailed the timeline for 

administrative and circuit court review. Id. It enacted the 

ten percent requirement and required protesting parties to pay 

an appeal bond. Id. The procurement appeal provisions were 

temporary, set to expire in 2011. Id. 

In 2012, the legislature passed H.B. 2265 (Act 173). It 

further amended the procurement code. It also made HRS § 103D-
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709(d) permanent. Conf. Comm. Rep. No. 62-12, in 2012 House 

Journal, at 1630. The report stated the bill’s purpose: “to 

make the purchase of goods, services, and construction more 

efficient for state agencies.” The legislature extended the law 

beyond the need to quickly use federal stimulus money to help 

Hawaiʻi handle a global recession. Evidently, it liked how HRS 

§ 103D-709 worked. 

HRS § 103D-709 has remained untouched since 2012. Twice, 

the legislature has amended other parts of Chapter 103D. In 

2019, it added a filing fee to help recoup administrative 

hearing costs. The legislature found that, “procurement bid 

challenges often result in project delays, funding lapses, and 

project cost increases.” 2019 Haw. Sess. Laws Act 73, § 1 at 

312. 

In 2021, the legislature revised the procurement code 

again. It enacted a deadline for agencies to resolve 

construction and airport contract protests and increased the 

protest bond for procurement appeals. 2021 Haw. Sess. Laws Act 

224, §§ 2, 3 at 813-14. The legislature found, “the procurement 

protest review process can be lengthy, causing project delays, 

thereby increasing project costs that are borne by taxpayers.” 

Id. at § 1 at 813. 

Taken together, these findings and enactments show a clear 

concern with speed, delay, finality, and cost. The ten percent 
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limit is itself evidence of this concern. On its face, the 

limit’s purpose is to reduce appeals. The monetary qualifier 

serves as a jurisdictional limit. Like monetary amounts tend to 

do. 

Our holding squares with how the Office of Administrative 

Hearings was deciding procurement appeals until Alpha’s appeal. 

Before then, OAH had repeatedly ruled (a) that the ten percent 

limit is jurisdictional and (b) a sub-ten-percent matter that 

disqualifies a bidder does not satisfy the limit by putting 100 

percent of the amount in controversy. See, e.g., MEI Corp. v. 

Dep’t of Budget and Fiscal Servs., City & Cnty. of Honolulu, 

Case No. PDH-2019-004 (Haw. Off. Admin. Hearings Sept. 27, 2019) 

(Hearings Officer’s Findings of Fact, Conclusions of Law, and 

Final Order), at 7-8. As far as we can tell, the Hearings 

Officer in this case decided for the first time that the ten 

percent requirement concerns standing, not jurisdiction. 

Last, we address the ICA’s holding that the Board of Water 

Supply contested jurisdiction, but failed to challenge Alpha’s 

standing. This ruling is technically accurate, but misses the 

point. BWS never attacked Alpha’s standing because it argued 

that the ten percent requirement is jurisdictional. The whole 

time, BWS argued that HRS § 103D-709(d)(2) foreclosed Alpha’s 

case. We decline to conclude that BWS waived its argument. 
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B. Alpha did not satisfy the ten percent requirement

Standing or jurisdiction? Never mind, says Alpha. It 

satisfied the ten percent requirement either way.

Alpha argues its protest concerns the responsiveness of its 

whole bid and its attack against Beylik’s entire bid. If Alpha 

won its protest, it would receive the contract. After all, it 

bid the lowest. Or, failing that, if Alpha’s protest 

successfully disqualified Beylik, there would be no responsive 

bidders, and BWS would presumably have to resolicit the 

contract. Thus, Alpha insists that its protest concerns a 

matter worth 100 percent of the contract value, and therefore it 

satisfied the jurisdictional limit.

BWS views things differently. Alpha’s protest concerns 

either its failure to list the subcontractor – $6,800 to trim 

trees, or 0.11 percent of the contract – or its failure to 

secure a C-27 licensee for all tree trimming and removal –

$95,000 or 1.59 percent of the contract. Either way, Alpha is

well below ten percent. 

HRS § 103D-709(d)(2) requires that a protest “concerns a 

matter” worth at least ten percent of the contract’s value. Is 

the relevant “matter” the small tree trimming and removal line 

item that got Alpha into trouble? Or is it 100 percent, because 

Alpha got disqualified? 
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In this respect, HRS § 103D-709(d)(2)’s ten percent 

requirement is ambiguous. Evidently, the legislature did not 

consider how the ten percent limit would apply in a situation 

where a less-than-ten-percent issue resulted in a disqualified 

bidder. 

To clear up this ambiguity, we use statutory interpretation 

doctrines. When a law’s meaning is unclear, this court 

considers the “reason and spirit of the law, and the cause which 

induced the legislature to enact it.” HRS § 1-15 (2009). This 

court may also consider other statutes in pari materia, a 

doctrine that construes ambiguous laws on the same subject 

matter together. State v. Obrero, 151 Hawaiʻi 472, 479, 517 P.3d 

755, 762 (2022). We do so because “[w]hat is clear in one 

statute may be called in aid to explain what is doubtful in 

another.” HRS § 1-16 (2009). 

Here, Alpha argues the legislature cannot have intended to 

permit an agency to disqualify a bidder based on a minor flaw 

without giving the bidder a forum to appeal that putatively 

unlawful disqualification. We disagree. Given the 

legislature’s oft-expressed dismay about delays caused by 

procurement appeals, we believe limiting small-scale appeals is 

exactly what the legislature intended. 

Alpha claims an incongruity between the one percent waiver 

rule and ten percent appeal requirement. Alpha’s argument boils 
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down to “how come 1 percent is important for listing a 

subcontractor, yet 9.9 percent isn’t important for appealing?” 

The answer is the same as the answer to the ten percent 

jurisdictional question – the legislature has expressed a low 

tolerance for procurement appeals. 

In many ways – protest bonds, expedited timelines for 

reviews, and the ten percent requirement – the legislature shows 

that it does not view procurement disputes as ordinary civil 

litigation. The legislature seeks to balance the virtues of 

procurement appeals – rule of law, protecting the public from 

costly mistakes - against the costs, delay and inefficiency in 

government purchasing. 

Per HRS § 103D-709(d)’s text, purpose, and legislative 

history, a disqualified bidder cannot sidestep the ten percent 

requirement. We hold that a sub-ten-percent matter that 

disqualifies a bidder does not satisfy the jurisdictional limit 

by placing 100 percent of the contract amount in controversy. 

Our decision does not displace existing OAH administrative 

caselaw holding that bidders may aggregate smaller claims to 

meet the ten percent threshold. See Nan, Inc. v. Honolulu Auth. 

For Rapid Transp., Case No. PDH-2015-004 (Off. Admin. Hearings 

May 28, 2015) (Hearings Officer’s Findings of Fact, Conclusions 

of Law, and Decision), at 16-18. 
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Next, we briefly address Alpha’s proposed distinction 

between offensive and defensive procurement appeals. That 

difference lacks a basis in HRS § 103D-709’s language, 

legislative history, or purpose. It does not alter our reading 

of the statute’s language and meaning. 

Last, we note that no party briefed the issue of whether 

judicial review under HRS § 632-1 (2016) may be available per 

Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 Hawaiʻi 263, 277 P.3d 

988 (2012). 

C. BWS properly disqualified Alpha’s bid

Because we rule that OAH and our courts lacked 

jurisdiction, we need not resolve the merits of Alpha’s bid 

protest. Due to procurement’s public importance and the 

infrequency of procurement cases in Hawaiʻi’s appellate courts, 

we exercise our supervisory power under HRS § 602-4 (2016) to 

provide guidance to lower courts. See also, e.g., State v. 

David, 141 Hawaiʻi 315, 327, 409 P.3d 719, 731 (2017) (providing 

guidance). 

Alpha divides the solicitation into two categories of work: 

tree removal and tree trimming. Alpha argues that its C-17 

license entitled it to perform tree removal. And, it says, the 

principles of estoppel or waiver force BWS to forgive its 

failure to list its <1 percent C-27 subcontractor. 
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22

Alpha is wrong on both fronts. BWS may require a C-27 

license for tree removal. And BWS had no obligation to waive 

Alpha’s failure to list a subcontractor. 

In Alpha’s view, the Contractors License Board defines the 

scope of a C-17 license as a matter of law. A CLB member (in a 

non-binding email advisory) informed BWS that Alpha’s C-17 

excavation license covered tree removal. So Alpha may use its 

C-17 license to remove trees. BWS violated licensure law, 

Alpha’s argument goes, by asking for a more specialized C-27 

landscaping license. 

Not so. In effect, Alpha asks us to hold as a matter of 

law that government agencies must always accept the minimum 

competence for each job. It also asks us to hold that a 

project’s specific needs are inconsequential; the general 

licensing laws always control. Alpha misses the point of 

contractor licensing laws. They protect the public from shoddy 

workmanship. See HRS § 444-4(2) (2013) (the purpose of 

contractor licensing laws is “protection of the general 

public”). Licensing doesn’t exist to force the government to 

hire less qualified contractors. 

Here, this project’s specific ecological needs called for a 

C-27 contractor. The solicitation included several 

environmental protection specs: supervision of tree trimming by 

an arborist and ornithologist, protecting surrounding 
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23

vegetation, and leaving the site in as good a condition as the 

contractor found it. The solicitation asked for a C-27 tree 

removal and tree trimming license. Alpha was not entitled to 

fulfill the work with its C-17 excavation license. 

When it procures, a government entity participates in the 

private market. Like any private actor, if BWS wants a C-27 

certified landscaper to do certain tasks, it may ask for one. 

BWS did not usurp the CLB’s authority when it specified license 

requirements for its project. BWS may enforce its solicitation 

terms. 

Next, BWS had discretion to disqualify Alpha. Even if 

Alpha could do the tree removal, it failed to name a tree 

trimming subcontractor. HRS § 103D-302(b) is clear: 

If the invitation for bids is for construction, it shall 

specify that all bids include the name of each person or 

firm to be engaged by the bidder as a joint contractor or 

subcontractor in the performance of the contract and the 

nature and scope of the work to be performed by each. 

Construction bids that do not comply with this requirement 

may be accepted if acceptance is in the best interest of 

the State and the value of the work to be performed by the 

joint contractor or subcontractor is equal to or less than 

one per cent of the total bid amount.

On a construction project, listing all subcontractors is 

mandatory. Id. BWS had the option to waive the condition if 

the work was “equal to or less than one per cent of the total 

bid amount.” Id. But BWS chose not to. It found that excusing 

Alpha’s mistake was not in the county’s best interest. For good 
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24

reason. Alpha lacked the proper license and its bid barely beat 

Beylik’s. BWS could disqualify Alpha. 

Waiver and estoppel do not change this calculus. As the 

circuit court and ICA rightly noted, the bid rejection letter 

cannot estop BWS. Alpha didn’t rely on the letter’s inaccurate 

statement. Alpha submitted a defective bid first, then BWS made 

the statement. Because there was no reliance, there can be no 

estoppel. Furuya v. Ass’n of Apartment Owners of Pac. Monarch, 

Inc., 137 Hawaiʻi 371, 387, 375 P.3d 150, 166 (2016) (“The 

essence of promissory estoppel is detrimental reliance on a 

promise.”) (cleaned up). 

There was also no waiver. Waiver requires the knowing 

relinquishment of a right. Coon v. City & Cnty. of Honolulu, 98 

Hawaiʻi 233, 261, 47 P.3d 348, 376 (2002). BWS’s misstatement 

was not a knowing waiver. 

IV. 

We reverse the ICA’s holding that the ten percent 

requirement relates to standing, not jurisdiction. We hold that 
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25

HRS § 103D-709(d) is jurisdictional and that Alpha could not 

satisfy the ten percent requirement. 

Jeffrey M. Osterkamp

(Kirk M. Neste on the briefs)

for petitioner and respondent

Alpha Inc.

Joseph A. Stewart

(Stephen G.K. Kaneshiro, Aaron 

R. Mun, Moana A. Yost, and Jeff 

A. Lau on the briefs)

for respondent and petitioner

Board of Water Supply, City and 

County of Honolulu

Lyle S. Hosoda and Spencer J. 

Lau (Kourtney H. Wong on the 

briefs)

for respondent Beylik/Energetic 

A JV

/s/ Mark E. Recktenwald

/s/ Sabrina S. McKenna

/s/ Todd W. Eddins

/s/ Lisa M. Ginoza

/s/ Vladimir P. Devens