Alpha, Inc. v. Board of Water Supply

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-DEC-2023
08:47 AM
Dkt. 77 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

ALPHA, INC., Petitioner-Appellant-Appellant, v.
BOARD OF WATER SUPPLY, CITY AND COUNTY OF
HONOLULU, Respondent-Appellee-Appellee, and
BEYLIK/ENERGETIC A JV, Intervenor-Appellee-Appellee,
and OFFICE OF ADMINISTRATIVE HEARINGS,
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS,
STATE OF HAWAII, Appellee-Appellee,

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

DECEMBER 29, 2023

LEONARD, PRESIDING JUDGE, AND WADSWORTH AND NAKASONE, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

In April 2022, Respondent-Appellee-Appellee Board of
Water Supply (BWS) invited bids for a project to install three
exploratory wells in central O#ahu (Project). After receiving a
bid from Petitioner-Appellant-Appellant Alpha, Inc. (Alpha), BWS
rejected the bid as "nonresponsive," i.e., not conforming in all
material respects to the invitation for bids. BWS awarded the
contract to Intervenor-Appellee-Appellee Beylik/Energetic A JV
(Beylik) and denied Alpha's protest. Alpha submitted a request
for hearing (Request) to Appellee-Appellee Office of
Administrative Hearings (OAH), Department of Commerce and
Consumer Affairs (DCCA), seeking administrative review of BWS's
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

decision. After briefing and a hearing, the OAH hearings officer
(Hearings Officer) denied and dismissed Alpha's Request and
affirmed BWS's determination that Alpha's bid was nonresponsive.
Alpha appealed the Hearings Officer's decision to the Circuit
Court of the First Circuit (Circuit Court).1/ After further
briefing and a hearing, the Circuit Court affirmed the Hearings
Officer's decision.
Alpha appeals from the September 6, 2022 "Final
Judgment" (Judgment), entered in favor of BWS and Beylik and
against Alpha by the Circuit Court. Alpha also challenges the
Circuit Court's September 6, 2022 "Order Affirming Hearing[s]
Officer's Decision Re: Board of Water Supply, City and County of
Honolulu's Award" (Order).
On appeal, Alpha contends that the Circuit Court erred
in affirming the Hearings Officer's determination that Alpha's
bid was nonresponsive and in "declining to determine that BWS
violated Alpha's [e]qual [p]rotection [r]ights[.]" BWS disputes
these contentions and argues, preliminarily, that the OAH
exercised subject matter jurisdiction over this matter in excess
of its statutory authority. Beylik joins BWS's arguments.
We hold that the Hearings Officer properly exercised
subject matter jurisdiction over the Request under Hawaii Revised
Statutes (HRS) § 103D-709(a) (Supp. 2021), which expressly
confers jurisdiction on OAH's hearings officers "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 under section 103D-310, 103D-701, or 103D-702."
Here, the Hearings Officer correctly concluded that Alpha was
aggrieved by BWS's determination, among others, that Alpha's bid
was nonresponsive, conferring subject matter jurisdiction on OAH
to review and determine the Request. We reject BWS's argument
that the Hearings Officer lacked such jurisdiction under HRS
§ 103D-709(d)(2) (Supp. 2021) because Alpha's protest did not
concern a matter that was "equal to no less than 10% of the

1/
The Honorable James H. Ashford presided.

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estimated value of the contract." HRS § 103D-709(d)(2) does not
define the subject matter jurisdiction of OAH hearings officers,
but, rather, concerns the parties that may initiate a proceeding
under HRS § 103D-709(d), and the circumstances under which they
may do so. Thus, subsection (d) concerns standing to initiate
such a proceeding, which is a prudential consideration rather
than an issue of subject matter jurisdiction.
We further hold that the Circuit Court did not err in
affirming the Hearings Officer's determination that Alpha's bid
was nonresponsive at the time of bid opening for failure to list
an intended subcontractor. Alpha has not shown that this
determination was clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record. Alpha's
equal protection argument, which was not raised in its protest to
BWS or in its administrative appeal to OAH, was waived.
Accordingly, we affirm the Judgment.

I. Background

The following background is drawn primarily from the
findings of fact (FOFs) contained in the "Hearings Officer's
Findings of Fact, Conclusions of Law, and Decision" (Decision),
filed on July 26, 2022:2/

1. On April 2022, BWS posted its Invitation for Bids
("IFB" or "Solicitation") soliciting sealed bids for Job
22-001; Kunia Wells IV Exploratory Wells, which involved the
installation of three (3) exploratory wells and
appurtenances (the "Project").

2. The Solicitation required a line-item lump sum
price for Tree removal and trimming.
3. The General Instructions to Bidders, paragraph 1.1
B, Qualification of Bidders required that a joint venture
bidder submit a copy of their notification - to the
Contractor's License Board of their intent to form a joint
venture to bid on a project - with its bid:
Partnership; Joint Venture. In accordance with
Section 16-77-13, Hawaii Administrative Rule,
Title 16, Chapter 77, Contractors of the
Department of Commerce and Consumer Affairs,
contractors shall notify the Contractors'

2/
Alpha has not challenged the FOFs, which are therefore binding on
appeal. See Poe v. Haw. Labor Rels. Bd., 97 Hawai #i 528, 536, 40 P.3d 930,
938 (2002) (ruling that an agency's unchallenged findings are binding on
appeal).

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Licensing Board of their intent to form a joint
venture or partnership to bid on a project. A
copy of this notification to the Contractors'
Licensing Board shall be submitted with the bid.

("Joint Venture Notice").
4. The Solicitation states in relevant part:
29.8 CLEARING
B. Prior to removal or trimming of trees
by a contractor with a valid C-27/27[b] license ,
a bird nest survey will be conducted by a
biologist provided by the BWS. If any nests are
found, the biologist will be responsible for
monitoring the active nests during construction.
The Contractor shall coordinate work as
necessary with the biologist to ensure that any
active nests remain undisturbed.
5. On May 6, 2022, Alpha submitted its Bid Proposal
in the amount of $5,969,235.00. Alpha listed a lump sum
price of $95,000.20 for Tree removal and trimming work.
Alpha did not list a subcontractor for Tree removal and tree
trimming work.

6. Alpha does not hold a C-27 Landscaping Contractor
or a C-27b Tree Trimming and Removal Contractor license.
Alpha does hold licenses in the "A" General Engineering, "B"
General Engineering, and specialty licenses C-17 Excavating,
Grading, and Trenching Contractor and C-57 Well Contractor
classifications, among others.
7. On May 6, 2022, [Beylik] submitted its Bid
Proposal in the amount of $5,977,000.00. [Beylik] did not
include a copy of their Joint Venture Notice. [Beylik]
listed a lump sum price of $84,000.00 for Tree removal and
trimming work. [Beylik] listed subcontractor Imua
Landscaping, license type C-27, C-27B, for Tree removal and
tree trimming work.

8. On May 13, 2022, BWS informed [Beylik] that BWS
was awarding the subject contract to [Beylik] and posted
notice of its intent to award the contract to [Beylik].

9. By letter dated May 17, 2022 ("Bid Rejection
Letter"), BWS rejected Alpha's Bid as being nonresponsive
pursuant to HRS §103D-302 and [Hawaii Administrative Rules
(HAR)] §3-122-33 for failure to list a C-27 Landscaping
Contractor and/or C-27b Tree Trimming and Removal
Contractor. BWS'[s] letter also stated that "[a] joint
contractor or subcontractor performing less than or equal to
one percent of the total bid amount is not required to be
listed in the proposal." BWS asserted that Alpha's lump sum
price of $95,000.20 for the Project's Line-Item No. 1 – Tree
Removal and Tree Trimming – is more than 1% of Alpha's total
bid amount of $5,969,235.00, and therefore, requires a
specialty contractor to be listed.
10. By letter dated May 18, 2022 ("Protest Letter"),
Alpha submitted its Protest to BWS specifically protesting
the following:
(1) The premature electronic notification by
the City and County of Honolulu (the "City")
posted on May 13, 2022, that the City intends to

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award the contract arising out of the IFB . . .
to [Beylik] rather than Alpha, the lowest
responsive and responsible bidder, without first
providing written notification to Alpha that the
City deemed Alpha's bid for the Project to be
nonresponsive;
(2) The City's incorrect determination in its
letter of May 17, 2022 . . . that Alpha was
required to list a specialty contractor in its
bid for the Projects "[t]ree removal and
trimming" scope of work, and its resulting
incorrect determination that Alpha's bid was
nonresponsive; and
(3) The City's failure to reject [Beylik]'s
bid as nonresponsive since the entity did not,
as required by the IFB, attach a notice to the
State of Hawaii Contractor License Board (the
"CLB") of its intent to form a joint venture to
bid on a project.
11. In its Protest Letter, Alpha also indicated,
among other things, that in reality it intended to
subcontract the "tree trimming" portion of the Tree trimming
and removal line item to Cohen Landscaping and Design, Inc.
("Cohen") which was less than 1% of the [c]ontract value,
and that Alpha intended to self-perform the "tree removal"
portion of the work.

In reality, . . . Alpha intends to subcontract
only the small-dollar "tree trimming" portion of
that line item – which is well less than 1% of
the ontract value. The "tree removal" portion
of the work is to be self-performed by Alpha.

* * *
. . . the "tree trimming" scope of work
constituted just $6,806.28 of the $95,000.20
listed for the "Tree removal and trimming" line
item[.]
12. On May 18, 2022, BWS emailed the Executive
Officer of the Contractors License Board regarding the
subject Solicitation and Protest Letter and requested
guidance to clarify the required license to perform tree
stump and root ball removal work[.]
. . . .
13. On May 20, 2022, at the request of BWS and in
response to Alpha's Protest Letter, [Beylik] acknowledged to
BWS that it did not submit a copy of its Joint Venture
Notice with its Bid. [Beylik] provided information to BWS
that it had received approval for its joint venture from the
CLB on November 19, 2021, prior to Bid opening, which was a
matter of public record. [Beylik] requested that its
inadvertent mistake be waived because it was
technical/clerical in nature and is not material because it
does not affect price, quality, or quantity.

. . . .
14. On June 7, 2022, the Executive Officer of the
Contractor's License Board replied to BWS'[s] May 18, 2022
email with an unofficial opinion that an "A" General

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engineering or C-17 Excavating, grading, and trenching
specialty license could also do the work, as clearing and
grubbing is included with these licenses[.]
. . . .

15. By letter dated June 7, 2022 ("Protest Denial
Letter"), BWS denied Alpha's Protest determining that:

A. Alpha' [sic] bid is nonresponsive because it
failed to list a licensed subcontractor for the
tree removal work, and Alpha cannot self-perform
this work as it does not possess a C-27 or C-27b
license as required.
B. Alpha lacks standing to protest [Beylik]'s
bid, but even if it did, [Beylik]'s bid was
acceptable.

C. There is no requirement to issue a
nonresponsive determination before a notice of
intent to award.

(Record references, footnotes, and some emphasis omitted.)
On June 14, 2022, Alpha filed the Request in OAH to
contest the Protest Denial Letter, pursuant to HRS § 103D-709 and
HAR § 3-126-42. Alpha argued that: 1) Alpha's bid was
responsive because Alpha was entitled to self-perform the tree
removal work for the Project under its C-17 license; (2) Beylik's
bid was nonresponsive because it did not include a Joint Venture
Notice; and 3) BWS violated the Procurement Code by issuing a
notice of intent to award the Project before rejecting Alpha's
bid.
On June 22, 2022, BWS filed a motion to dismiss for
lack of jurisdiction, or in the alternative, for summary
judgment. Beylik filed a motion to intervene and, on June 24,
2022, a substantive joinder to BWS's motion.
In its motion to dismiss, BWS asserted that under HRS
§ 103D-709(d)(2) (quoted infra), OAH lacked jurisdiction over the
Request because it did not concern a matter that was "equal to no
less than 10% of the estimated value of the contract." In its
motion for summary judgment, BWS argued that: (A) the Request
should be dismissed for lack of jurisdiction for failure to meet
the ten percent amount-in-controversy requirement; (B) summary
judgment was appropriate because it was undisputed that Alpha's
bid failed to list all subcontractors as required and no
exceptions were made; and (C) the Request should also be
dismissed as to the award to Beylik.

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On June 24, 2022, Alpha filed a motion for summary
judgment on the following bases: (1) the Procurement Code did not
permit BWS to reject Alpha's bid on the basis that Alpha, as a
C-17 licensee, lacked the necessary license to perform the
Project's tree removal work; (2) the Hearings Officer lacked
jurisdiction over BWS's contention that it could, and/or properly
did, reject Alpha's bid on the basis that BWS had the discretion
to disqualify a bidder for failing to list a subcontractor whose
scope of work was less than 1% of the bid price, or,
alternatively, BWS was estopped from making that argument; (3)
Beylik's bid was nonresponsive; and (4) the Hearings Officer had
jurisdiction to consider Alpha's Request.
On July 5, 2022, the Hearings Officer heard the matter.
Alpha's motion for summary judgment and BWS's motion to dismiss
or for summary judgment were denied. The Hearings Officer took
jurisdiction over the matter without prejudice as to the parties
claims and defenses. A further hearing was held on July 14 and
15, 2022, and numerous exhibits were admitted into evidence.
On July 26, 2022, the Hearings Officer issued the
Decision. As relevant here, the Hearings Officer: (1) denied
BWS's motion to dismiss or in the alternative for summary
judgment; (2) denied Alpha's motion for summary judgment; (3)
denied and dismissed with prejudice Alpha's Request; and (4)
affirmed "[BWS's] determinations as stated in its Protest Denial
Letter[,]" which the Hearings Officer set forth in FOF 15, quoted
above, and which included the determination that Alpha's bid was
nonresponsive.
On August 5, 2022, Alpha filed a notice of appeal in
the Circuit Court seeking reversal of the Decision and remand to
the Hearings Officer with instructions to order BWS to award the
Project to Alpha. Alpha filed its opening brief on August 17,
2022.
On August 23, 2022, BWS filed its answering brief,
arguing in part that OAH improperly exercised subject matter
jurisdiction because the Request failed to meet the 10%
jurisdictional threshold. On the same date, Beylik filed its
answering brief.

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The Circuit Court heard the matter on August 31, 2022,
and entered the Order and Judgment on September 6, 2022, which
affirmed the Hearings Officer's Decision.
This secondary appeal followed.

II. Standards 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 Construction, 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[.]

HRS § 103D–710(e).
"The existence of jurisdiction is a question of law
that this court reviews 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

BWS contends that OAH exercised subject matter
jurisdiction over this matter in excess of its statutory
authority. In particular, BWS argues that "OAH lacked
jurisdiction for failure to meet HRS § 103D-709(d)(2)'s matter in
controversy requirement."
HRS § 103D-709 states, in relevant part:

Administrative proceedings for review. (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, 103D-701,
or 103D-702.

. . . .

(c) Only parties to the protest made and decided
pursuant to sections 103D-701, 103D-709(a), 103D-310(b), and
103D-702(g) may initiate a proceeding under this
section. . . .

(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 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.

. . . .
(k) As used in this section, "estimated value of the
contract" or "estimated value", with respect to a contract,
means the lowest responsible and responsive bid under
section 103D-302, or the bid amount of the responsible
offeror whose proposal is determined in writing to be the
most advantageous under section 103D-303, as applicable.

In the OAH proceeding, BWS contended that under HRS
§ 103D-709(d)(2), OAH lacked jurisdiction over the Request
because it did not concern a matter that was "equal to no less
than 10% of the estimated value of the contract." BWS argued
that no matter what metric was used — intended subcontractor

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Cohen's quote of $6,806.28 for tree trimming work, or Alpha's
line-item entry of $95,000.20 for tree trimming and removal work
— both were less that 10% of Alpha's bid of $5,969,235.00. Thus,
BWS contended that Alpha did not meet the minimum 10% amount-in-
controversy requirement for jurisdictional purposes. BWS made
the same argument to the Circuit Court — and makes substantially
the same argument on appeal.
Alpha, on the other hand, asserted that its Request
contested: "1) the complete rejection of its Bid (for failure to
list a C-27 or C-27b subcontractor) and that Alpha was properly
licensed to self-perform the tree removal work; 2) the acceptance
of [Beylik]'s Bid (which was allegedly nonresponsive for failure
to include a copy of their Joint Venture Notice); and 3) BWS'[s]
alleged violation of the [Procurement] Code for issuing its
notice of intent to award before making its nonresponsive
determination of Alpha's Bid." Relying on Nan, Inc. v. HART,
Case No. PDH-2015-004 (Off. Admin. Hearings, Haw. Dep't Com. &
Consumer Aff. May 28, 2015) (Hearings Officer's Findings of Fact,
Conclusions of Law, and Decision), Alpha argued that "[t]he
language of HRS § 103D-709(d) 'supports accumulation or
aggregation of claims as long as the total exceeds the minimum
jurisdictional amount.'" Alpha further argued that its challenge
to the responsiveness of Beylik's bid was a direct challenge to
the entire bid that exceeded the 10% requirement. Alpha made the
same argument to the Circuit Court – and makes substantially the
same argument on appeal.
The Hearings Officer rejected BWS's jurisdictional
argument as follows:

The Hearings Officer is persuaded by Alpha's position
on the issue of jurisdiction to hear the [Request] and
DENIES BWS'[s] Motion to Dismiss for failure to meet the
minimum 10% amount in controversy. This matter does not
merely/only concern the failure to list a less-than-1% tree
trimming subcontractor, but also alleges: 1) that BWS
wrongfully rejected Alpha's Bid - for failure to list a C-27
or C-27b subcontractor - because Alpha, as a C-17
Contractor, could legally self-perform the work; 2) that
[Beylik]'s Bid was nonresponsive for failure to submit a
required Joint Venture Notice; and 3) that BWS violated the
Code by issuing its notice of intent to award before making
its nonresponsive determination of Alpha's Bid.
. . . .

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As noted above, Section 103D-709(a) of the Code
specifically confers jurisdiction on the DCCA hearings
officers to determine de novo, any request from any bidder,
offeror, contractor . . . aggrieved by a determination of
the chief procurement officer.

Alpha was certainly "aggrieved" by the determinations
of BWS'[s] chief procurement officer in that Alpha s low Bid
was rejected as nonresponsive, whereas [Beylik]'s Bid was
accepted notwithstanding it failed to submit a copy of its
Joint Venture Notice. Additionally, Alpha alleges that BWS
violated the Code by issuing its intent to award the
contract to Intervenor BEFORE rejecting Alpha's Bid as
nonresponsive. These claims, in the aggregate confer
jurisdiction on the OAH. All Parties have cited to the Code
and Decisions by OAH in support of their respective
positions. OAH most certainly has jurisdiction in this
matter.

To be clear, however, having determined that OAH has
jurisdiction to hear the [Request] does not mean that this
Hearings Officer cannot dismiss a cause or causes of action,
for failure to meet the Section 103D-709(d) 10% minimum
amount in controversy. Or determine that Alpha lacks
standing to challenge BWS'[s] intent to award the contract
to [Beylik]. However, those are matters subject for hearing
on the merits.
Accordingly, the Hearings Officer concludes that OAH
has jurisdiction to hear the [Request]. . . .

In Alpha's primary appeal, it appears that the Circuit
Court declined to address BWS's argument that the OAH lacked
jurisdiction over Alpha's Request. However, the Circuit Court
did address "Beylik's [j]urisdictional [a]rgument," stating:

[Beylik's] arguments presented addressed the
Hearing[s] Officer's jurisdiction, not this Court's
jurisdiction. The Hearing[s] Officer's jurisdiction is not
the subject of Alpha's appeal, and there is no cross appeal
that puts the Hearing[s] Officer's jurisdiction at issue in
this case. Therefore, this issue has been waived due to its
non-appeal.

On appeal to this court, Alpha similarly contends that BWS waived
its jurisdictional argument by not filing a cross-appeal raising
the issue in the Circuit Court or this court.
"If a court lacks jurisdiction over the subject matter
of a proceeding, any judgment rendered in that proceeding is
invalid." Bush v. Hawaiian Homes Comm'n, 76 Hawai#i 128, 133,
870 P.2d 1272, 1277 (1994). Accordingly, "subject matter
jurisdiction may not be waived and can be challenged at any
time." Curtis v. Bd. of Appeals, Cnty. of Haw., 90 Hawai#i 384,
393, 978 P.2d 822, 831 (1999) (quoting Pub. Access Shoreline Haw.
v. Haw. Cnty. Plan. Comm'n., 79 Hawai#i 425, 431, 903 P.2d 1246,

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1252 (1995)); see also Bush, 76 Hawai#i at 133, 870 P.2d at 1277
("[A] question [of subject matter jurisdiction] is valid at any
stage of the case, and though a lower court is found to have
lacked jurisdiction, we have jurisdiction here on appeal, not of
the merits, but for the purpose of correcting an error in
jurisdiction." (quoting Chun v. Emps.' Ret. Sys., 73 Haw. 9, 14,
828 P.2d 260, 263 (1992))). These same principles apply to the
jurisdictional issue raised by BWS in this case. If OAH lacked
subject matter jurisdiction over Alpha's Request, the Decision
was invalid. Thus, BWS's challenge to OAH's jurisdiction, which
BWS asserted in the Circuit Court and now asserts in this court,
has not been waived and may be addressed by this Court. See HRS
§ 103D–710(e).
HRS § 103D–709 sets out the procedural requirements for
administrative review by OAH hearings officers in these
circumstances. In construing HRS § 103D–709, "our foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself, and we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose." Tax Found.
of Haw. v. State, 144 Hawai#i 175, 193, 439 P.3d 127, 145 (2019)
(citing In re Doe, 95 Hawai#i 183, 191, 20 P.3d 616, 624 (2001)).
HRS § 103D-709(a) expressly confers jurisdiction on
OAH's hearings officers "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 under section
103D-310, 103D-701, or 103D-702." Here, as the Hearings Officer
correctly concluded, "Alpha was certainly 'aggrieved' by the
determinations of BWS'[s] chief procurement officer in that
Alpha's low Bid was rejected as nonresponsive, whereas [Beylik]'s
Bid was accepted notwithstanding it failed to submit a copy of
its Joint Venture Notice." HRS § 103D-709(a) thus conferred
subject matter jurisdiction on the Hearings Officer to review and
determine Alpha's Request.

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In contrast, HRS § 103D-709(d) does not, by its express
terms, purport to define the jurisdiction of OAH hearings
officers.3/ Rather, HRS § 103D-709(d) concerns the parties that
may initiate a proceeding under HRS § 103D-709, and the
circumstances under which they may do so. In short, HRS § 103D-
709(d) appears to concern the standing requirements to initiate a
proceeding under section 103D-709. See Citizens for Protection
of North Kohala Coastline v. Cnty. of Haw., 91 Hawai#i 94, 100,
979 P.2d 1120, 1126 (1999) ("As a general rule, standing is the
aspect of justiciability focusing on the party seeking a forum
rather than on the issues he wants adjudicated." (quoting
Hawai#i's Thousand Friends v. Anderson, 70 Haw. 276, 281, 768
P.2d 1293, 1298 (1989)) (brackets and internal quotation marks
omitted)); Sierra Club v. Dep't of Trans., 115 Hawai#i 299, 318,
167 P.3d 292, 311 (2007) ("Standing is concerned with whether the
parties have the right to bring suit." (quoting Pele Def. Fund v.
Puna Geothermal Venture, 77 Hawai#i 64, 67, 881 P.2d 1210, 1213
(1994))).
The legislative history of HRS § 103D-709(d) does not
shed any further light on subsection (d)'s purpose. In 2009, the
legislature passed Act 175, which amended the Procurement Code
by, among other things, adding a new subsection (d) to HRS
§ 103D-709, whose language was identical to that of the current
subsection (d). See 2009 Haw. Sess. Laws Act 175, § 9 at 703-04.
This predecessor subsection (d), along with certain other
amendments made by Act 175, was set for repeal on July 1, 2011.
See id. § 14 at 705. The pertinent conference committee report
on the 2009 legislation stated in part:

Your Committee on Conference has amended this bill by:

. . . .
(8) Providing that persons protesting the solicitation or
award of a contract under the bid or request for
proposals procedures of section 103D-302 or 103D-303,

3/
Compare, for example, 28 U.S.C. § 1332(a)(1) (2023), which
expressly provides for federal diversity jurisdiction in part as follows:
"The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between . . . citizens of different States[.]"
(Emphasis added and formatting altered).

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HRS:
(A) May request an administrative review if:

(i) The contract has an estimated value of
less than $1,000,000 and the protest
concerns a matter that is greater than
$10,000; or
(ii) The contract has an estimated value of
$1,000,000 or more, and the protest
concerns a matter equal to no less than
ten percent of the contract[.]

Conf. Comm. Rep. No. 45, in 2009 House Journal, at 1595-96. In
2012, the legislature passed Act 173, which further amended the
Procurement Code and reenacted HRS § 103D-709(d), as well as
certain other "sunseted" amendments made by Act 175. Conf. Comm.
Rep. No. 62-12, in 2012 House Journal, at 1630; see 2012 Haw.
Sess. Laws Act 173 § 3 at 609-10. HRS § 103D-709(d) was
reenacted without any further statement of purpose.
In construing HRS § 103D-709(d), the hearings officer
in Air Rescue Sys. Corp. v. Fin. Dep't, Cnty. of Haw., Case No.
PDH-2012-006 (Off. Admin. Hearings, Haw. Dep't Com. & Consumer
Aff. Dec. 10, 2012) (Hearing[s] Officer's Findings of Fact,
Conclusions of Law, and Decision), stated:

The Hearings Officer believes that the legislative intent
behind the minimum threshold amount requirement was to
eliminate protests over matters of a very small amount. In
the past, it was possible that a successful protest over a
minor portion of a bid could result in the disallowance of
the entire bid. At the very least, such a protest could tie
up procurement amidst the uncertainty over whether a minor
error could delay and ultimately detrimentally affect the
entire procurement process.

Id. at 14; see Greenpath Techs., Inc. v. Dep't of Fin., Cnty. of
Maui, Case No. PCH-2014-002, at 22 (Off. Admin. Hearings, Haw.
Dep't Com. & Consumer Aff. Mar. 20, 2014) (Hearings Officer's
Findings of Fact, Conclusions of Law, and Decision) (quoting Air
Rescue). There does not appear to be any specific legislative
history supporting this theory of the purpose of HRS § 103D-
709(d). In any event, the theory is consistent with the
conclusion that subsection (d) concerns standing to initiate a
proceeding under section 103D-709.
"In Hawai#i 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

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matter jurisdiction . . . ." Tax Found., 144 Hawai#i at 188, 439
P.3d at 140 (internal quotation marks omitted) (citing Life of
the Land v. Land Use Comm. of Hawaii, 63 Haw. 166, 172, 623 P.2d
431, 438 (1981)). Similarly, here, we conclude that HRS § 103D-
709(d) — which by its terms does not define the subject matter
jurisdiction of OAH hearings officers but, rather, focuses on the
parties that may initiate a proceeding under HRS § 103D-709 —
concerns standing as a prudential consideration rather than as an
issue of subject matter jurisdiction. As discussed above,
Alpha's Request met the jurisdictional requirements of HRS
§ 103D-709(a). Accordingly, the Hearings Officer properly
exercised subject matter jurisdiction over the Request under HRS
§ 103D-709(a).4/

B. The Determination that Alpha's Bid was Nonresponsive

Alpha contends that the Circuit Court erred by
affirming the Hearings Officer's determination that Alpha's bid
for the Solicitation was nonresponsive.
In the Decision, the Hearings Officer determined that
"Alpha's Bid was nonresponsive at the time of bid opening" due to
its failure to list "all subcontractors regardless of percentage
of work[,]" and "Alpha did not obtain a waiver of its failure to
list subcontractor Cohen." In reaching these conclusions, the
Hearings Officer reasoned that: (A) "HRS § 103D-302(b)5/ requires
that for construction bids, the names of all subcontractors shall

4/
We note that in its answering brief, BWS does not separately
contest Alpha's standing — or analyze the legal consequence of any lack of
standing — to initiate the proceeding before the OAH, based on Alpha's alleged
failure to meet HRS § 103D-709(d)'s 10 percent requirement.
5/
HRS § 103D-302(b) (2012) states:
An invitation for bids shall be issued, and shall
include a purchase description and all contractual terms and
conditions applicable to the procurement. 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.

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be included"; (B) "[t]he General Instructions to Bidders
(Construction Services) affirms that bidders shall comply with
HRS 103D-302 and that bids which are not in compliance may be
accepted if: 1) it is in the best interest of the public; and 2)
the value of the work to be performed by the subcontractor is
equal to or less than one percent (1%) of the total bid amount";
(C) "Alpha can self-perform a portion of the tree removal and
trimming work" for the Project;6/ (D) because "Alpha did not list
Cohen or any other subcontrator for tree trimming and removal
work[,] Alpha's Bid was nonresponsive at the time of bid
opening"; (E) "Alpha did not request a waiver of their failure
[to] list a subcontractor for tree removal and trimming work";
and (F) "BWS had the discretion to, but did not waive Alpha's
failure [to] list a subcontractor for tree removal and trimming
work." (Footnotes added.)
The Hearings Officer summarized his reasoning as
follows:

Thus, notwithstanding the Hearings Officer's
conclusion that Alpha could legally do some of the tree
removal and trimming work within the scope of their C-17
license, here, BWS alerted bidders that a C-27/27B
contractor license was required. The Hearings Officer
concludes that it is within the discretion of BWS to specify
what type of specialty license is required for specific work
on this Project. [Beylik]'s Bid listed a C-27/27B specialty
subcontractor for tree removal and trimming work, Alpha's
Bid did not. Alpha did not obtain a waiver of its failure
to list subcontractor Cohen. Accordingly, the Hearings
Officer concludes that Alpha has not established by a
preponderance of the evidence that BWS's determination -
that Alpha's bid is nonresponsive because it failed to list
a licensed subcontractor for the tree removal work, and
Alpha cannot self-perform this work as it does not possess a
C-27 or C-27b license as required - was improper.

6/
Based on the documents and witness testimony presented at the
hearing, the Hearings Officer further explained:

[T]here is some overlap in the scope of work that a C-17
Excavation and a C-27/27B Landscaping contractor can legally
perform depending on the project. The Hearings Officer
concludes that both an "A" General engineering (which
includes a C-17 Excavating, grading, and trenching specialty
license) contractor and/or a C-27 Landscaping/C-27b Tree
trimming and removal contractor can perform tree removal
work. However, the Hearings Officer does not conclude that
Alpha can self-perform all of the tree removal and trimming
work for this Project for which the listing of a C-27/27B
contractor was required. This is consistent with the
"reality" of Alpha's position and CLB's interpretation of
scope of work.

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In affirming the Hearings Officer's determination, the
Circuit Court ruled in part:7/

11. With respect to the propriety of the BWS's
determination, and the Hearing[s] Officer's concurrence,
that Alpha's bid was nonresponsive at the time of bid
opening:

a. The Hearings Officer determined that the
"IFB and Addendum 2 puts Alpha on notice that a C-
27/27[b] license is required for the tree removal and
trimming work." Decision at 13; 21. The Court does
not disagree with this, as that is a reasonable
interpretation of the bid solicitation.
b. Alpha was not a C-27/27b licensee and
Alpha did not identify a C-27/27b licensee to perform
the tree trimming and tree removal work.
c. The only subcontractor identified by Alpha
in its bid was Foundation International Inc., which
does not hold a C-27/27b license.

d. The BWS determined that a C-17 licensee
(such as Alpha) could not perform the tree removal and
tree trimming work for this particular project. The
Hearings Officer agreed, in light of a host of
factors, including comparing the scope of work for the
C-17, C-27, and C-27b licenses; the particular, non-
boilerplate environmental considerations and
requirements for this Project; and the unofficial,
nonbinding opinion of a single member of the
Contractor's Licensing Board. The Court cannot find
fault in the Hearing[s] Officer's determination that
Alpha could not self-perform the work, particularly
given the environmental concerns applicable to this
Project.
12. It is clear to the Court that Alpha's bid was
nonresponsive at the time of bid opening. The BWS's and the
Hearing[s] Officer's determinations on this topic were
correct.

On appeal, Alpha asserts the following two points of
error regarding the determination that Alpha's bid for the
Solicitation was nonresponsive:

(1) In light of the facts that (a) the Hearings
Officer determined that C-17 licensees can perform tree
removal work, and (b) BWS'[s] Water System Standards, which
were part of the Solicitation, provide that tree removal
work is incidental to excavation work, the Circuit Court
erred by affirming the Hearings Officer's determination that
Alpha's bid for the Solicitation was nonresponsive, which
the Hearings Officer based on his conclusion that BWS could
decide after-the-fact that Alpha's C-17 excavation license
was insufficient to permit it to self-perform the
Solicitation's tree removal work and that instead a C-27
license was required.

7/
The Circuit Court's Order presents undifferentiated findings of
fact and conclusions of law, which we refer to in this opinion as "FOFs/COLs."

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(2) In light of the facts that (a) BWS's rejection of
Alpha's bid was not based on Alpha's failure to list its
tree trimming subcontractor, whose work amounted to less
than 1% of the bid price; and (b) BWS's bid rejection letter
specifically stated that bidders did not need to list
subcontractors whose work amounted to less than 1% of the
bid price, the Circuit Court erred by affirming the Hearings
Officer's determination that Alpha's bid was nonresponsive
for failing to list a subcontractor whose work amounted to
less than 1% of the bid price.

At bottom, it appears that these somewhat confusing
contentions are based on a distinction Alpha is drawing between
tree-removal and tree-trimming work, and Alpha's related
assertions that: (1) because Alpha could self-perform tree-
removal work with its C-17 excavation license, it had no
obligation to list a subcontractor for that work in its bid; and
(2) because the value of the tree-trimming work was less than 1%
of the overall bid amount, Alpha was not required to list a
subcontractor for that work in its bid.
Alpha's contentions appear to be based on a
"characterization of the Hearings Officer's findings" that the
Circuit Court rejected. Specifically, the Circuit Court stated:

13. Alpha argues that the Hearings Officer concluded
that Alpha proved that Alpha could self-perform the tree
removal work. The Court disagrees with Alpha's
characterization of the Hearings Officer's findings. The
Hearings Officer merely stated that there is "some overlap"
in the work that a C-17 licensee and a C-27/27b licensee
"can legally perform depending on the project." Decision at
18. The Hearings Officer also stated that both types of
licensees "can perform tree removal work," but more
specifically stated that on this particular Project, Alpha
cannot self-perform all of the tree removal and trimming,
because a C-27/27b license is required. Id.
14. In other words, the Hearings Officer recognized
that the BWS, as the Project owner, was entitled to specify
what licensee it sought for the particular project, given
the various concerns about minimal disturbance to existing
vegetation, returning the site to its original condition or
better, concern for existing birds' nests, the goal of
minimal grading, etc., and therefore had the right to
specify that the "intricate" skills or machinery of a
"finesse" C-27/27b licensee were necessary for the
particularized needs of this Project.

See also supra note 6. The Circuit Court's FOFs/COLs 13 and 14,
which describe the Hearings Officer's related findings and
conclusions in the Decision, are not clearly erroneous.
As set out above, in FOF/COL 11a, the Circuit Court
"d[id] not disagree" with the Hearings Officer's determination

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that the Solicitation put Alpha on notice that a C-27/27b license
was required for the tree removal and trimming work for the
Project. We, too, agree that this is a reasonable interpretation
of the Solicitation, which required a line-item lump sum price
for "Tree removal and trimming" and expressly referred to
"removal or trimming of trees by a contractor with a valid C-
27/27[b] license."8/ It is undisputed that Alpha was not a C-
27/27b licensee and did not identify in its bid a C-27/27b
licensee to perform the tree removal and trimming work.
Further, in FOF/COL 11d, the Circuit Court "c[ould ]not
find fault" in the Hearings Officer's determination that Alpha
"could not perform the tree trimming and removal work for this
particular project" under its C-17 license. The Hearings
Officer's conclusion in this regard was one of mixed fact and law
based on his review of a "host of factors," including "the
particular, non-boilerplate environmental considerations and
requirements for this Project[.]" Alpha has not shown that the
Hearings Officer's conclusion was clearly erroneous in view of
the reliable, probative, and substantial evidence on the whole
record.
Relying on a lone sentence in BWS's Bid Rejection
Letter — that a subcontractor performing less than 1% of the
total bid amount need not be listed in the bid (see Decision FOF
9, supra) — Alpha argues that BWS waived and is estopped from
asserting any argument that Alpha was required to list Cohen, a

8/
On appeal, Alpha argues that BWS's "Water System Standards" were
part of the Solicitation (via double incorporation by reference) and allowed
Alpha to perform tree removal work with its excavation license. This argument
was not raised in Alpha's protest to BWS or in Alpha's administrative appeal
to OAH, and thus was not addressed in the Hearings Officer's Decision.
Accordingly, the argument was waived. See Hawaiian Dredging Constr. Co. v.
Dep't of Transp., No. CAAP-XX-XXXXXXX, 2013 WL 6244718, at *2 (Haw. App. Nov.
29, 2013) ("Hawai#i courts have consistently held that a court's review of an
administrative agency's decision is limited to issues properly raised in the
record of the administrative proceedings."); Waikiki Resort Hotel, Inc. v.
City & Cnty. of Honolulu, 63 Haw. 222, 250, 624 P.2d 1353, 1372 (App. 1981)
("[T]he general rule that an appellate court will consider only such questions
as were raised and reserved in the lower court applies on review by courts of
administrative determinations so as to preclude from consideration questions
or issues which were not raised in administrative proceedings."); Ass'n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai #i 97, 107, 58
P.3d 608, 618 (2002) (arguments not raised in the trial court are ordinarily
deemed waived on appeal).

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less than 1% contractor, in Alpha's bid.9/ The Hearings Officer
rejected this argument on the basis that the sentence at issue
was a mistaken statement of the law, as BWS had to follow HRS §
103D-302(b), which requires the listing of all subcontractors
regardless of percentage of work.10/ The Hearings Officer further
concluded that Alpha did not request or obtain a waiver, pursuant
to HRS § 103D-302(b), of its failure to list subcontractor Cohen.
In Alpha's primary appeal, the Circuit Court addressed
Alpha's waiver and estoppel arguments as follows:

18. Alpha argues that it was not legally required to
seek a waiver from the BWS for Alpha's failure to list its
C-27/27b subcontractor, and that the BWS and the Hearings
Officer erred in not finding a waiver. The Court agrees
that Alpha was not legally required to seek a waiver, but
that is immaterial.

19. The facts remain that Alpha submitted a
nonresponsive bid for failure to list an intended
subcontractor in violation of HRS Section 103D-302(b);
granting a waiver of that violation is discretionary; the
BWS did not choose to waive the subcontractor listing
requirement; and the record does not establish that a waiver
was in the BWS's best interest.

20. The Court can find no fault with the BWS's
decision to not grant a waiver.

9/
Relying on the same language in BWS's Bid Rejection Letter, Alpha
also asserts that BWS waived and is estopped from asserting any argument that
Alpha was required to request a waiver of the subcontractor listing
requirement. This argument was not raised in Alpha's protest to BWS or in
Alpha's administrative appeal to OAH, and thus was not addressed in the
Hearings Officer's Decision. Accordingly, the argument was waived. See supra
note 8. In any event, whether Alpha was required to seek a waiver of the
subcontractor listing requirement is immaterial for the reasons discussed
infra.
10/
In context, the sentence at issue appears to have been part of an
introductory paragraph in the Bid Rejection Letter purporting to summarize
applicable law. That paragraph stated:

In accordance with [HRS] § 103D-302, each bidder shall
include in its bid the name of each person or firm to be
engaged by the Bidder on the project as a joint contractor
or subcontractor also indicating the nature and scope of
work to be performed by such joint contractor and/or
subcontractor and their respective contractor's license
number. A joint contractor or subcontractor performing less
than or equal to one percent of the total bid amount is not
required to be listed in the proposal. The Bidder shall be
solely responsible for verifying that their joint contractor
or subcontractor has the proper license at the time of the
submitted bid.

During the July 2022 hearing before the Hearings Officer, Jadine Urasaki,
Assistant Program Administrator, Capital Projects Division, for BWS, testified
that the underlined sentence was a mistake.

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. . . .
21. Estoppel requires that the estopped party does
something that induces the other party to act in detrimental
reliance on the estopped party's words or conduct. Thus,
there can be no detrimental reliance unless the estopped
party acts first, before the other party acts, because
unless the estopped party acts first, there is nothing to
rely on and there is no inducement.
22. Here, Alpha knew that the bid solicitation
required that Alpha must list all subcontractors, and that a
C-27/27b licensee was required, yet Alpha chose not to list
Cohen as a subcontractor. In making that decision, Alpha
could not possibly have relied on the BWS's later
misstatement that 1% subcontractors need not be listed,
because that later misstatement had not yet occurred when
Alpha made its decision to omit Cohen. Alpha thus did not
rely on the BWS's misstatement, so there can be no estoppel.

We agree based on the entire record that Alpha
submitted a nonresponsive bid for failure to list an intended
subcontractor, in violation of HRS Section 103D-302(b). See
Okada Trucking Co. v. Bd. of Water Supply, 101 Hawai#i 68, 75, 62
P.3d 631, 638 (Haw. App. 2002) (ruling that a bid was
nonresponsive when it "failed to list the name of the
subcontractor that [the bidder] intended to use for the . . .
work"). Although BWS had the discretion under section 103D-
302(b) to accept Alpha's bid if acceptance was in the best
interest of the State and the value of the work to be performed
by the subcontractor was equal to or less than one per cent of
the total bid amount, see Okada Trucking, 101 Hawai#i at 76, 62
P.3d at 639, BWS did not accept the bid, i.e., it did not choose
to waive the subcontractor listing requirement. Furthermore,
Alpha has not shown, based on the lone sentence at issue in the
Bid Rejection Letter, that the Hearings Officer's determination —
that BWS did not waive11/ the subcontractor listing requirement —
was clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record. For similar reasons,

11/
The Hawai#i Supreme court has defined waiver as "an intentional
relinquishment of a known right, a voluntary relinquishment of rights, and the
relinquishment or refusal to use a right." Off. of Hawaiian Affs. v. Hous. &
Cmty. Dev. Corp. of Haw. (OHA), 117 Hawai#i 174, 201, 177 P.3d 884, 911
(2008), rev'd and remanded on other grounds, 556 U.S. 163 (2009) (quoting Coon
v. City & Cnty. of Honolulu, 98 Hawai#i 233, 261, 47 P.3d 348, 376 (2002)).
"Since waiver is the intentional relinquishment of a known right, knowledge is
an essential element of waiver." 31 C.J.S. Estoppel & Waiver § 106 (Aug. 2023
update) (footnote omitted). The question whether a valid waiver exists is
generally a question of fact. OHA, 117 Hawai #i at 201, 177 P.3d at 911.

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Alpha has not shown that the Hearings Officer's mixed conclusion
of fact and law rejecting Alpha's estoppel argument, i.e.,
Decision FOF/COL 22, was clearly erroneous.
In sum, Alpha has not shown that the Hearings Officer's
determination — that Alpha's bid for the Solicitation was
nonresponsive at the time of bid opening — was clearly erroneous
in view of the reliable, probative, and substantial evidence on
the whole record. Accordingly, the Circuit Court did not err in
affirming this determination.

C. Alpha's Equal Protection Argument

Alpha contends that the Circuit Court erred "by
declining to determine that BWS violated Alpha's [e]qual
[p]rotection [r]ights when it refused to permit Alpha to perform
tree removal work under its C-17 license despite having
repeatedly allowed other C-17 licensees to perform tree removal
work."
This mixed issue of fact and law was not raised in
Alpha's protest to BWS or in Alpha's administrative appeal to
OAH, and was thus not addressed in the Hearings Officer's
Decision. Although an administrative agency generally lacks
power to pass upon the constitutionality of a statute, see HOH
Corp. v. Motor Vehicle Indus. Licensing Bd., 69 Haw. 135, 141,
736 P.2d 1271, 1275 (1987), Alpha is not challenging the
constitutionality of a Procurement Code provision, but is merely
raising a claim that BWS violated Alpha's equal protection rights
in treating Alpha differently from other C-17 licensees that were
allegedly allowed to perform tree removal work. Because Alpha
failed to raise this mixed issue of fact and law before OAH, the
argument was waived on appeal. See Perry v. Bd. of Trs. of Emps.
Ret. Sys., CAAP-XX-XXXXXXX, 2012 WL 1382476, at *11 (Haw App.
Apr. 20, 2012) (SDO) (because appellant failed to raise an
alleged Contract Clause claim before the ERS, the circuit court
correctly found that he had waived that argument on appeal
(citing Waikiki Resort Hotel, 63 Haw. at 250, 624 P.2d at 1372));
Sato v. Dep't of Human Servs., No. CAAP-XX-XXXXXXX, 2019 WL
1872931, at *2 (Haw. App. Apr. 26, 2019) (SDO) ("Waiver of an

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issue not raised at the administrative level applies even to
constitutional issues when appellant is not challenging the
constitutionality of a statute or other rule."); see also HOH
Corp., 69 Haw. at 143, 736 P.2d at 1276 ("When determination of
the constitutional issue depends on factual determinations, they
should be made first by the administrative officials who are
especially equipped to inquire, in the first instance, into the
facts." (quoting B. Schwartz, Administrative Law § 8.37, at 519
(2d ed. 1984))).

IV. Conclusion

For the reasons discussed above, we affirm the
September 6, 2022 Final Judgment, entered by the Circuit Court of
the First Circuit.

On the briefs:
/s/ Katherine G. Leonard
Jeffrey M. Osterkamp and Presiding Judge
Kirk M. Neste
(Cades Schutte, LLLP)
for Petitioner-Appellant- /s/ Clyde J. Wadsworth
Appellant Associate Judge

Joseph A. Stewart,
Aaron R. Mun, and /s/ Karen T. Nakasone
Stephen G.K. Kaneshiro Associate Judge
(Kobayashi, Sugita & Goda, LLP)
for Respondent-Appellee-
Appellee

Lyle S. Hosoda,
Kourtney H. Wong, and
Spencer J. Lau
(Hosoda Law Group)
for Intervenor-Appellee-
Appellee

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