| Edward P. Tiffey, Esq.
Tiffey Law Practice PLLC
Charleston, West Virginia
Attorney for Petitioner
| Darrell V. McGraw, Jr., Esq.
Benjamin F. Yancey III, Esq.
Barbara H. Allen
Attorney General's Office
Attorneys for Respondent
The Opinion of the Court was delivered PER CURIAM.
Justice McHugh disqualified. Judge Fox sitting by temporary assignment.
JUSTICE WORKMAN and JUSTICE KETCHUM dissent and reserve the right to file dissenting opinions.
A writ of mandamus will not issue unless three elements coexist - (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
Protest of a purchase order or contract awards must be submitted no later than five (5) working days after the award. The vendor is responsible for knowing the bid opening and award dates. Protests received after these dates may be rejected at the option of the Director.
With regard to the effect of legislative rules, this Court has held that [a] regulation that is
proposed by an agency and approved by the Legislature is a 'legislative rule' as defined by
the State Administrative Procedures Act, W. Va. Code, 29A-1-2(d) , and such a
legislative rule has the force and effect of law. Syllabus Point 5, Smith v. West Virginia
Human Rights Com'n, 216 W. Va. 2, 602 S.E.2d 445 (2004).
Upon application of 148 C.S.R. § 1-8.1.1 to the facts of this case, this Court concludes that the petitioner failed to protest the award of the contract to Stonewall Retail Marketing within five working days of the award of the contract. The contract was awarded on December 29, 2010, which is the date the contract was certified encumbered by the respondent. Therefore, the latest date on which a protest could be timely filed was January 7, 2010, five working days after the award. (See footnote 2) However, the petitioner did not file its protest until January 19, 2010, eleven working days after the contract was awarded.
Although the petitioner filed a notice of intent to protest on January 8, 2010, this notice did not constitute a proper protest. According to 148 C.S.R. § 1-8.1.2,
All protests shall be submitted in writing to the Purchasing Division and contain the following information:
8.1.2a. the name and address of the protestor;
8.1.2.b. the requisition, purchase order or contract numbers;
8.1.2.c. a statement of the grounds of protest;
8.1.2.d. supporting documentation, if necessary; and
8.1.2.e. the resolution or relief sought.
8.1.2f. Failure to submit this information shall be grounds for rejection of the protest by the Director.
The petitioner's January 8, 2010, letter did not include the grounds of protest, any supporting documentation, or the resolution or relief sought. Because the petitioner did not file a protest of the award of the contract to Stonewall Retail Marketing until eleven days after the award of the contract, this Court finds that the award was untimely under 148 C.S.R. § 1-8.1.1.
In its brief to this Court, the petitioner presents several reasons for the untimely filing of its petition, none of which this Court finds valid. First, the petitioner notes that the contract was awarded on December 29, 2010, during a week in which the petitioner's employees were all out of the office for the holidays. This Court finds, however, that there is no provision in our law that tolls the period for filing a protest if the award of the contract occurs during the week between Christmas Day and New Year's Day. Also, upon becoming aware of the facsimile transmission once the petitioner's employees returned to the office on Monday, January 4, 2010, the petitioner still had four days in which to timely file a protest but failed to do so.
Second, the petitioner complains that while the respondent transmitted the facsimile to the petitioner on December 29, 2009, informing the petitioner that its bid was unsuccessful, the respondent failed to follow up with a letter sent by first class mail. This excuse also is unavailing. The respondent had no duty to mail a letter of notification to the petitioner. Rather, 148 C.S.R. § 1-8.1.1 clearly indicates that [t]he vendor is responsible for knowing the bid opening and award dates.
Third, the petitioner opines that the contract awarded to Stonewall Retail Marketing has an effective date of January 1, 2010, which was a State holiday. Therefore, the first effective business date under the contract was January 4, 2010. This fact, however, is not helpful to the petitioner. The applicable rule provides that a protest must be submitted no later than five working days after the award, which was December 29, 2009, not the effective date of the contract. Moreover, even if the date on which the five-day time period began to run was January 4, 2010, the petitioner failed to file its protest within five days of that date.
Next, the petitioner asserts without explanation that it learned that Stonewall Retail Marketing was selected as the prevailing bidder on January 7, 2010. However, the time period for filing a protest begins to run when the contract is awarded, not when the protesting bidder learns the contract is awarded. Further, 148 C.S.R. § 1-8.1.1 charges the vendor with knowing the bid award date. Therefore, we find no merit to this argument.
Finally, the petitioner avers that the respondent should be equitably estopped from denying the petitioner's protest as untimely based on the respondent's Assistant Director's statement, made on January 8, 2010, that the respondent will look at [the contract award] and if we are wrong, we will reverse it, if we are right, it will stay the way it is. We reject this argument also. The facts indicate that the petitioner's protest was filed more than five days after the Assistant Director's comment.
For the reasons set forth above, we conclude that the petitioner's protest of the award of the contract at issue was untimely in that it was filed later than five working days after the award. Because of the untimeliness of the protest, the respondent had the option,
pursuant to 148 C.S.R. §1-8.1.1, to reject the protest. As a result, the petitioner does not have a clear legal right to the relief which it sought, and the respondent does not have a legal duty to do the thing which the petitioner seeks to compel.
As noted above, mandamus also lies to control the action of an administrative officer in the exercise of his discretion when such action is arbitrary or capricious. However, the petitioner has failed to show that the respondent's decision to reject the petitioner's protest as untimely was arbitrary or capricious where the protest was filed eleven days after the contract was awarded and six days after the time period for the filing of the protest expired. (See footnote 3)