Judge Stephen I. Goorvitch, Case Number: 23STCP03199, Date: 2024-05-22 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP03199, Date: 2024-05-22 Tentative Ruling

Petitioner Safariland, LLC (“Petitioner”) submitted a bid to provide body armor to the State of California under the Alternative Protest Pilot Project (“APPP”). (Pub. Contract Code

§§ 12125 et seq.) The California Department of General Services (“Respondent” or the “Department”) awarded the contract to another company. Petitioner sought to protest the award. The APPP protest regulations required Petitioner to submit its protest, including a filing fee and arbitration deposit, to the coordinator of the APPP (the “APPP Coordinator”) on or before July 25, 2023. Petitioner submitted its written statement of protest with the APPP Coordinator by the deadline. However, Petitioner did not satisfy the deadline for the filing fee and arbitration deposit because the check was sent to the wrong address. Therefore, Respondent did not consider Petitioner’s protest. Now, Petitioner seeks a writ of mandate directing Respondent to accept Petitioner’s complete protest package and process it on the merits. The court denies the writ.

An unsuccessful bidder who intends to protest the awarded contract . . . must inform the Coordinator. The Notice of Intent to Protest must be in writing and must reach the Coordinator within the number of days specified in the Solicitation, which shall be . . . not more than 5 working days after the posting of the Notice of Intent to Award Contract, as specified in the Solicitation. Failure to give written notice by Close of Business on that day shall waive the right to protest.

(1 Cal. Code Regs. § 1406(a).) The regulations define how an unsuccessful bidder shall file a protest:

A protest is filed by the submission of: the Detailed Written Statement of Protest and any exhibits specified in section 1412; a check or money order made payable to the Office of Administrative Hearings for the OAH filing fee of $50; and the arbitration deposit as specified in subsection (c) or (d) to the Coordinator by the Close of Business on the 7th working day after the time specified in the Solicitation for written Notice of Intent to Protest under section 1406. A copy of the Detailed Written Statement of Protest and exhibits must also be served on all Parties named in the service list as specified in section 1406. A Protestant who fails to comply with this subsection waives Protestant's right to protest.

(1 Cal. Code Regs. § 1408(a) [bold italics added].) An unsuccessful bidder may submit a protest via facsimile but must comply with the following regulation:

Notification by facsimile is sufficient for service. If the Detailed Written Statement of Protest is sent to the Coordinator by facsimile, Protestant must: (1) Verify that the pages sent were all received by the Coordinator; and (2) Remit the required deposit and filing fee to Coordinator by any reasonable means. If sending via carrier, the postmark date or equivalent shall be used to determine timeliness.

(1 Cal. Code Regs. § 1408(b) [bold italics added].) For contracts in excess of $500,000, the protestor must make a deposit of the estimated arbitration costs, which is $7,000. (1 Cal. Code Regs. § 1408(c)(4).)

In February 2023, the Department’s Procurement Division issued a request for proposal (“RFP”) for body armor. (Angeles Decl. ¶ 8 and Exh. 1; and Pet. Exh. A.) As relevant to this writ petition, the RFP stated the following protest procedure:

Within seven (7) working days after the last day to submit a Notice of Intent to Protest, the Coordinator must receive from the protesting bidder the complete protest filing including the signed, written detailed statement of protest including exhibits, filing fee and deposit or small business certification as applicable. Untimely submission of the complete protest filing waives the bidder’s right to protest.

On July 12, 2023, the Department posted its notice of intent to award the contract to Black Box Safety, Inc. (Angeles Decl. ¶ 9, Exh. 2.) Two days later, on July 14, 2023, Petitioner’s Director of Sales Operations, Jason Brown, faxed a written notice of intent to protest the award. (Id. ¶ 10, Exh. 3.) Brown’s cover letter was addressed to the Department’s “Alternative Protest Process Coordinator.” (Ibid.)

On July 17, 2023, the Procurement Division acknowledged receipt of Petitioner’s notice of intent to protest the contract award. (Angeles Decl. ¶ 11, Exh. 4.) In relevant part, the Procurement Division’s letter stated:

The Safariland Group is required to file with the Procurement Division’s Alternative Protest Coordinator before 5:00 p.m. (PDT/PST) on Tuesday, July 25, 2023, a complete protest filing in accordance with 2 CCR, Section 1408…. The [$50 filing] fee and [$7,000 arbitration] deposit must be in the form of a check or money order made payable to the Office of Administrative Hearings and remit to the following address:

If the Detailed Written Statement of protest and exhibits are sent to the Coordinator by facsimile, the Protestant must … remit the required deposit and filing fee to the Coordinator by any reasonable means. Your complete protest filing must be received by the Coordinator by the above stated deadline. You are advised that failure to comply with any of the above requirements waives your right to protest.

(Id. Exh. 5 [bold italics added].) Although the checks were to be made payable to the “Office of Administrative Hearings,” the checks were to be mailed to “Department of General Services, Procurement Division/Alternative Protest Coordinator.” (Ibid.)

On July 25, 2023, Petitioner submitted by fax its detailed written statement of protest to the Coordinator. (Angeles Decl., ¶ 12; Exh. 5.) On page 2, the protest stated that, “[t]he OAH filing fee of $50 and the arbitration deposit of $7,000 were sent overnight on Friday July 21st via Fed Ex. The tracking number is 7727 9713 9242.” (Id., Exh. 5 at 2.) However, Petitioner sent the checks to the wrong address and recipient. Specifically, Petitioner sent the checks to:

The petition for writ of mandate is brought pursuant to Code of Civil Procedure section 1085. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Generally, the petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

The court exercises “independent judgment” in addressing questions of law. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “Interpretation of a statute or regulation is a question of law subject to independent review.” (Ibid.)

The dispute in this case is whether submitting the checks to the Office of the Administrative Hearings (the “OAH”) instead of the APPP Coordinator is sufficient to lodge a protest. Per the regulations, if Petitioner submits the SOP by facsimile, Petitioner is required to “[r]emit the required deposit and filing fee to [the] Coordinator by any reasonable means. If sending via carrier, the postmark date of equivalent shall be used to determine timeliness.” (1 Cal. Code Regs. § 1408(b) [bold italics added].) The plain language of the regulation is clear: The checks must be sent to the APPP Coordinator.[1] Respondent submits evidence, which Petitioner does not rebut, that “the Department’s Procurement Division has never received the checks for the filing fee and arbitration deposit from Safariland.” (Angeles Decl. ¶ 15.)

Instead, Petitioner argues that submitting the checks to the OAH was sufficient. For example, Petitioner refers to OAH as an “office” of Department and as the “payee agency.” (OB 3-4.) Petitioner’s suggestion that delivery to the OAH was, in effect, submission to the APPP Coordinator lacks factual support. OAH is an independent office under the direction and control of the Director of Office of Administrative Hearings, who is appointed by the Governor and subject to confirmation by the California Senate. (Gov. Code §§ 11370.1 [Director], 11370.2(a) & (b) [OAH].) Although OAH is part of the Department of General Services, it serves a different function than the Procurement Division and is located at a different address. Indeed, Respondent represents, and Petitioner does not dispute, that OAH’s offices are located in a “completely different county (i.e., Yolo County).” (Angeles Decl. ¶ 18.)

Petitioner also suggests that there was no prejudice because the APPP Coordinator’s “sole function” under the regulations is to “gather” the documents and “transmit[] the protest package to OAH for resolution.” (OB 3:18-22.) Petitioner does not account for the APPP Coordinator’s role in the alternate protest procedure of screening for frivolous protests. As stated by the Court of Appeal, “the entire purpose of the alternate protest procedure is to filter out frivolous protests expeditiously. (Imagistics International, Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589.) This process is designed to be performed quickly. “A Protestant who fails to comply with [the submission deadlines] waives Protestant's right to protest.” (1 Cal. Code Regs. § 1408(a).) If the protest package if timely submitted, then “[t]he Coordinator shall review the Detailed Written Statement of Protest within 5 working days after receipt to preliminarily determine if the protest is Frivolous and notify Protestant of the option to withdraw or proceed in arbitration.” (1 Cal. Code Regs. § 1414(b) [bold italics added].) If the Coordinator preliminarily determines that the protest is frivolous, the bidder can either withdraw the protest or post a bond in an amount not less than 10% of the estimated contract value to proceed with its protest. (1 Cal. Code Regs. §§ 1414(b) and 1418.) Thus, the Coordinator’s preliminary determination of frivolousness serves as a deterrent to frivolous protests at the start of the protest process. Petitioner’s interpretation of the regulations, under which the APPP Coordinator must search for portions of the protest package that were not delivered to the Coordinator, conflicts with this purpose.

Similarly, Petitioner argues that it provided the APPP Coordinator with a tracking number showing that the checks had been sent to OAH. Petitioner asserts that the “Coordinator knew, or had the ability to know, that [Petitioner] had timely submitted all the elements of a valid Protest specified in the Protest Procedure.” (OB 5.) “[Petitioner’s] assertion disregards the massive number of contracts and proposals that defendant DGS administers, and apparently is premised on the belief that it would be a simple matter to coordinate piecemeal protests ….” (Imagistics, supra, 150 Cal.App.4th at 589.) An interpretation of section 1408 under which the protest package need not be sent or delivered directly to the Coordinator could result in an “uneven and inconsistent administration” of the procedures and would require time-intensive assessments by the Coordinator, and ultimately the courts, about whether the protest package was properly submitted to the Coordinator through some intermediary, such as OAH. This undermines the purpose of the regulations.

Petitioner contends that Respondent cannot “invoke” section 1408 and require submission of the complete protest package to the Coordinator because “DGS … did not designate a specific human being as the Coordinator in the RFP.” (OB 8-9.) Petitioner’s argument is unpersuasive. The “Coordinator” is defined as “the person designated as the Alternative Protest Pilot Project Coordinator by the Department of General Services, Procurement Division, to coordinate all aspects of the Solicitation under the Alternative Protest Pilot Project.” (1 Cal. Code Regs. § 1402(e).) That person was Cheryl Angeles, Department’s Section Manager of the Purchasing Authority Management Section in the Procurement Division, between February 1, 2023, and January 30, 2024. (Angeles Decl. ¶ 2.)[2] Petitioner cites no authority that any specific form of action was required for Department to designate Angeles as the APPP Coordinator during this period. Nor does Petitioner cite any requirement that the RFP specifically identify the APPP Coordinator. The RFP clearly informed the bidders that the notice of protest and complete protest package must be delivered to the “Alternative Protest Process Coordinator” and specified the Coordinator’s address in West Sacramento. (Angeles Decl. Exh. 1 at 11; see also Pet. Exh. A at 19-20.) Petitioner faxed its notice of intent to protest and SOP directly to the unnamed Coordinator. (Angeles Decl. Exh. ¶¶ 10, 12, Exh. 3, 4, 5.)

In the alternative, Petitioner contends that it “substantially complied with the requirements of 1 CCR 1408(a) by timely delivering its Detailed Written Statement of Protest to the Coordinator and the two required checks directly to OAH.” (Opening Brief (“OB”) 6-7 [bold italics added].) Petitioner cites no authority suggesting that “substantial compliance” is sufficient to comply with the regulations. To the contrary, the cases interpreting the regulations hold otherwise. (See Imagistics International, Inc. v. Department of General Services (2007) 150 Cal.App.4th 581.) In Imagistics, the petitioner sought to challenge a contract awarded by the Department to a competitor. Although the petitioner timely submitted the written statement of protest, it failed to submit the filing fee and arbitration deposit by the deadline, and omitted the exhibits from the protest. The Department terminated the protest, and the petitioner sought a petition for writ of mandate, arguing that it had “substantially complied” with the regulations. The trial court rejected the argument and the District Court of Appeal affirmed that decision, reasoning in relevant part:

[T]he regulation does not grant the protest coordinator any discretion to accept a late filing; rather, it specifically calls for forfeiture of a protest for noncompliance. Under these circumstances, the doctrine of substantial compliance is inapplicable, as a court does not have the power to issue a writ of mandate to accept a late filing. (Barnes v. Wong (1995) 33 Cal.App.4th 390, 395–397, 39 Cal.Rptr.2d 417 [ordinance not allowing discretionary acceptance of late filing (in absence of good faith mistake regarding deadline) represents “sound policy” avoiding “uneven and inconsistent administration of preelection procedures and is the most reliable way to ensure that everyone is treated fairly and equally”; no discretion to abuse or any ministerial duty to petitioner to accept late filing, so mandate will not lie]; Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal.App.3d 167, 176–178, 234 Cal.Rptr. 357 [no abuse of discretion in setting deadline; no discretion to ignore deadline, so mandate will not lie].)

(Imagistics, supra, 150 Cal.App.4th at 588-589.) Petitioner attempts to distinguish Imagistics, arguing that it governs only the issue of timing. In the absence of clear authority supporting Petitioner’s argument, the court follows the reasoning of Imagistics: The regulation does not grant the APPP Coordinator—or this court—discretion to deviate from its requirements; the regulation expressly calls for forfeiture of a protest for non-compliance; and the doctrine of substantial compliance is inapplicable.

Petitioner argues that “[w]hile timely filing of a notice of appeal is jurisdictional … a failure to pay the associated fees is a matter which is always subject to cure.” (OB 7, citing Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal. App. 4th 1167, 1172-1173.) Rapp concerned Rules of Court governing the submission of the filing fee for an appeal. Petitioner does not show any similarity between the Rules of Court at issue in Rapp and the pertinent language in section 1408. Accordingly, Rapp is inapposite. “An opinion is not authority for propositions not considered.” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)

Finally, Petitioner raises policy arguments, stating: “[T]here is simply no justification for elevating the place of the timely tender of a filing fee to jurisdictional status. The notion runs contrary to established procedural practice in this state and deprives Safariland of a right granted to it by statute. This Court cannot sanction such an unwarranted interpretation or application of an administrative regulation.” (OB 8.) The court must interpret and enforce the APPP regulations as they are written. Petitioner’s policy arguments concerning the wisdom or fairness of specific attributes of the protest procedures should be directed at the Legislature.

3. Respondent’s counsel shall provide notice and file proof of service with the court.

[1] To the extent “purely legal issues involve the interpretation of a statute [or regulation] an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency’s interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343, citation omitted.) “The construction given to a regulation by the officials charged with its enforcement is entitled to great weight.” (San Jose Teachers Assn. v. Barozzi (1991) 230 Cal.App.3d 1376, 1379.) In this case, however, the plain language of the regulation is clear.

[2] Angeles served in an “acting” capacity due to a vacancy. (Angeles Decl. ¶ 2.)