Pacific Security Alarm, Inc. v. CPA

Appeal No. 03-0035-GA IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS PACIFIC SECURITY ALARM, INC., P lai"tiff-Appellee. v. COMMONWEALTH PORTS AUTHORITY, Defe"da"t -Appella"t. Superior Court Case No. 02-0119E OPINION Cite as: Pacific Security Alarm, Inc. v. CPA, 2006 MP 17 Argued and submitted on August 20, 2004 Tinian, Northem Mariana Islands Attomey for Plaillliffs-Appellant Attomey for Defwdallt-Appellee G. Anthony Lon& Esq. Douglas Cushnie, Esq. 2nd Floor Lim's Building P.O. Box 500949 P.O. Box 504970 Saipan, MP 96950 Saipan, MP 96950 BEFORE: MIGUEL S. DEMAPAN, Chief Justice; ROBERT j. TORRES, Justice Pro Tempore; MICHAEL BORDALLO, Justice Pro Tempore  DEMAPAN, Chief Justice: 1[1 Pacific Security Alarm (PSA) was one of seven bidders on a Commonwealth Ports Authority (CPA) project to improve the security access system and construct a new security control office at the Saipan International Airport. As the runner up bidder, PSA challenged AIC Marianas' (AIC) winning bid by filing a protest with the CPA's Executive Director, who rejected the bid protest. PSA argued that Ale submitted an unresponsive bid which the CPA then wrongfully allowed to be cured of its defects. In addition, PSA argued that the award to Ale was arbitrary, capricious, and an abuse of discretion. 1[2 PSA appealed the Executive Director's denial to the CPA Board of Directors, which also denied PSA's appeal. PSA then filed a complaint for injunctive relief with the Superior Court which was denied, as well as a petition for judicial review. PSA additionally argued in its petition for judicial review of the administrative agency's decision that its due process rights were violated because the CPA allowed a biased committee of its board of directors to decide the appeaL 1[3 The Superior Court affirmed the agency decision and found that the CPA's award to AlC was not arbitrary or capricious. We AFFIRM the trial court's decision. I. 1[4 In June 2001, the CPA published a Notice to Bidders, which solicited bids to improve security systems at the Saipan International Airport. S.5.F.M. International, 2  Inc., the project manager and designer ("Project Manager"), held a pre-bid conference. In a prepared question and answer format, the Project Manager provided specific information on requirements concerrung the availability of technical staff and the issue of prices and quantities for the various bid items. 1[5 Paragraph 1.07 of the invitation for the bid ("Bid Invite") specified qualification prerequisites for potential bidders. These requirements induded: (1) An office in Saipan or Guam "staffed with certified factory trained engineers and technicians fully capable of engineering, supervising installation, system startup, commissioning, providing training, and providing ongoing maintenance and emergency service." (2) The "bidder" and his equipment supplier/subcontractor have ten years experience in the design, development, production and installation of computerized building systems with emphasis on access control and dosed circuit video systems" (3) The bidder shall submit a list of manufacturer and model numbers of proposed equipment to be installed as listed in § 01300 (4) The bidder shall submit a list of proposed spare pal1s as recommended by the equipment manufacturers. Appellant's E.R. at 12-13. Paragraph B of the Bid Invite provided: Proposal Qualification: The Bidder shall ensure that his proposal addresses and satisfies all requirements of this specification. The Bidder shall provide necessary and sufficient information that 3  allows comprehensive review of his proposal and proves that his proposal meets the requirements of the specification. Appellant's E.R. at 14. The Bid Invite instructions also stated: The apparent low bidder will be subject to a thorough and comprehensive review of its qualifications and Bid Documents to ensure that they are "responsive and responsible." TIUs review will include, but is not limited to previous project experience, financial capabilities, quality of equipment and personnel, and bonding and insurance. If the apparent low bidder is found not to be "responsible or responsive," their bid will be rejected and the next lowest bidder will be evaluated for qualifications. Appellant's E.R. at 9. 1[6 The CPA received seven bids prior to the bid opening and determined that AIC was the lowest responsible bidder at $1,493,814.00 and PSA was the next lowest bidder at $1,526,170.00. AIC pooled its resources with subcontractor Diebold to prove its qualifications and meet the responsibility requirement. Diebold had a staff of certified factory-trained technicians and more than ten years of experience with respect to airport security installation. The CPA announced its intent to award the contract to Ale. After Federal Aviation Administration review, the CPA entered into a contract with AIC for the airport project in October 2001. In response, PSA filed a protest. AIC, thereafter, submitted additional information and materials to the CPA, including detailed listings of equipment, parts and identification of personneL 1[7 After the CPA denied the protest, PSA appealed the denial to the CPA 4  Appeals Board and moved to recuse the attorney representing the Appeals Board as well as the entire Appeals Board. Counsel for the Appeals Board subsequently withdrew, but the members of the Appeals Board declined to recuse themselves. 1[8 In the meantime, the CPA issued a Notice to Proceed to Ale and in a letter subsequently notified PSA of this decision. Before the Appeals Committee could make its decision, PSA initiated an action in the Superior Court for injunctive relief. TIle CPA responded that the September 11, 2001 terrorist attacks in New York and Washington D.C resulted in a security simation that required the inunediate construction and installation of the airport security project. �9 The Superior COUll issued an order denying the motion for a preliminary injullction. Subsequently, the Appeals Board denied PSA's appeal. PSA then sought judicial review of the denial of its appeal in the Superior Comt. The Superior Comt affinned the administrative order.1 PSA filed a timely notice of appeal with this Comt in accordance with Rule 4(A) of the Commonwealth Rules of Appellate Procedure. II. 1[10 This Court has jurisdiction pursuant to Article IV, section 3 of the Commonwealth Constitution and Title 1, section 3102(a) of the Commonwealth Code. I Security Alamz Inc., v. Commonwealt/z CPA and AIC Manarws, Inc., Ov. No. 02-0199-E (N.M.!. Super. Ct. Oct. 1, 2003). 5  III. 1[11 We address this appeal in two parts. First, we begin our analysis by addressing the applicable standard of review. Next, we move into a substantive discussion of the legal issues raised. A. Standard of Review 1[12 PSA argues the applicable standard of review of this administrative appeal from the Superior Court is de novo. The CPA asserts that the specific review standard is set forth by the Commonwealth Administrative Procedure Act ("Administrative Procedure Act") at 1 CMC § 9112(f) and contends that there exists a presumption of administrative regularity in judicial review of agency decisions. Essentially, both parties are partially correct. While our review of the Superior Court decision is indeed de novo, it is important to emphasize that we are bound by the constraints of the Administrative Procedure Act in our de novo review. As a result, we do not give deference to the lower court's findings because our review of agency actions is done with the identical guidelines followed by the lower court under the Administrative Procedure Act. In re San Nicolas, 1 N.M.1. 329, 333- 5 (N.Mariana Islands, 1990). 1[13 The Administrative Procedure Act provides that appeals from final judgments of the Commonwealth Superior Court regarding agency actions "be 6  taken as in other civil cases." 1 CMC § 9113. Any court reviewing the actions of a NMI administrative agency, however, must follow the Administrative Procedure Act. 1 CMC § 9112. See In re San Nicolas, 1 N.M.1. 329, (N.Manana Islands, 1990). The CPA Board of Directors Appeal Committee's decision qualifies as final agency action as defined by 1 CMC § 9112(d). The applicable standards of review of agency action are set forth in 1 CMC § 9112(fy-, and as a "reviewing court," we must analyze this appeal using the guidelines set forth in this section. 1[14 Under the Administrative Procedure Act, we defer to agency decisions. Agency decisions are reviewed on the basis of an "arbitrary and capricious" standard. Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367, 1374 (9th Cir. 1995). 2 1 CMC § 9112(f) provides that: (t) To the extent necessary to decision and when presented, the reviewing comt shall decide all relevant questions of law, interpret constihttional and stahttory provisions, and detennine the meaning or applicability of the tenns of an agency action. The reviewing court shall: (1) Compel agency action unlawfully withheld or tmreasonably delayed; and (2) Hold tmlawful and set aside agency action, findings, and conclusions fOlUld to be: (i) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (ii) Contrary to constihttional right, power, privilege, or immunity; (iii) In excess of stahttory jurisdiction, authority, or limitations, or short of stahttory rights; (iv) Without observance of procedme required by law; (v) Unsupported by substantial evidence in a case subject to 1 CMC §§ 9108 and 9109 or otherwise reviewed on the record of an agency hearing provided by stahtte; or (vi) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing comt. In making the forgoing detennination, the comt shall review the whole record or those parts of it cited by a party, and due accolUlt shall be taken of the rule of prejudicial error. 7  Although arbitrary action under 1 CMC § 9112 is not specifically defined in the statute, it has been defined in this jurisdiction as "characterization of a decision or action taken by an administrative agency or inferior court meaning willful and ruueasonable action without consideration or in disregard of facts or without determining principle." In re Blankenship, 3 N.M.1. 209, 217 (1992)(citing Black's law Dictionary 5th ed. 1979). Entirely failing to consider an important aspect of a claim will also render an agency action arbitrary and capricious. In re Hajadai Beach Hotel Extension, 4 N.M.I. 37, 45 n.33 (1993). That being said, "the scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mr f s. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.s. 29, 43 (1983). Id. Agency action should be overturned only when the agency has relied on factors the Legislature has not intended it to consider, "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). 115 Agency actions under reVIew are also "entitled to a presumption of regularity." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.s. 99 (1977). An agency should 8  not be required to provide an explanation unless the presumption of regularity has been rebutted by evidence suggesting that the agency decision is arbitrary and capricious. Impresa Construzioni Geom. Domenico Garufi v. U.S., 238 F.3d 1324, 1338 (2001). In the context of a bid protest, a frustrated bidder must show not only that there was a significant error in the bidding process, but that the error prejudiced it in order to prevail. Industrial Property Management, Inc. v. U.S., 59 Fed.CL 318, 323 (2004). "To establish prejudice a protester must show that there is a 'substantial chance it would have received the contract award but for that error.'" Id., citing Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999). B. The selection and Award to Ale. 1. Responsiveness of Bid 116 The standards used in contracting and bidding by the CPA are codified by the Commonwealth Ports Authority Act (the CPA Act). Rivera v. Guerrero, 4 N.M.I. 79, 82 (1993). The CPA Act empowers the CPA "[t]o adopt and enIorce rules and regulations for the orderly, safe, and sanitary operation of its ports." Id. (citing 2 CMC § 2122U)). The CPA's bidding procedures and exceptions provide that expenditures exceeding $25,000.00 must be made by contract to the "lowest responsible bidder." 2 CMC § 2132. The CPA rules and regulations provide that a bid may be rejected for the failure to conform to the essential requirements of an Invitation to Bid. See CPA Regulations at Part 3.2(7)(a). 9 117 Laws regulating competitive bidding are enacted for the benefit and protection of the taxpaying public, not for the benefit and enrichment of bidders. Legal Aid Society v. City ofNew York, 114 F.Supp.2d 204, 230-3\ (S.D.N.Y., 2000). The purpose of such laws is "to guard against favoritism, improvidence, extravagance, fraud and corruption." ld. 118 PSA argues that AIC's bid was unresponsive because AlC (1) failed to identify the equipment and spare part list; (2) failed to specify the quantities of card readers and spare cards; and (3) did not have personnel on Saipan who possessed the necessary experience and background to meet the Bid Invite personnel requirement. In order to analyze whether the bid was responsive, it is necessary to determine whether the specific proposal items in the bid fall under the category of the responsibility of the bidder to perform or the category of the responsiveness of the actual bid submitted. 119 Responsibility and responsIveness are two distinct categories involved in bidding proposals. The term "responsibility" refers to a bidder's ability to perform the contract before an award is determined. News Printing Co., Inc. v. U.S., 46 Fed.Cl. 740, 746 (2000). The term "responsiveness" refers to whether the actual bid is in conformity with the material terms of an invitation for bids. ld. 120 Responsibility determinations will not generally be overturned unless there are allegations of fraud or bad faith. ld. Government agencies have broad discretion 10  in making responsibility determinations. Id. Eligibility requirements, including personnel and their qualifications, are matters of bidder responsibility. Id. In addition, contracting officers are not required to provide written explanations for their actions in determining responsibility. Impresa Construzioni Geom. Domenico Garufi v. U.S., 238 F.3d 1324, 1338 (cir. 2001). 121 Because the equipment, spare parts, and staffing and experience requirements were included as part of the "Qualifications" section of the Bid Invite, the CPA correctly determined they were matters of responsibility. Bidders were required to submit lists of equipment and spare parts in support of their bid. Bidders were also required to list manufacturer names and model numbers for the required equipment. IFB § 13980 at 1.07A Bidder Qualification (3)(e and F). A spare parts list was also required. Although Ale did not submit its lists until after bid opening, the CPA found the failure to submit such lists went to issues of responsibility that could be resolved after the bid opening and were not fatal to Ale's bid. The CPA further determined that because it had placed the list requirement within the "Qualification" section of the bid, bidders understood that failure to fully comply with this "responsibility" issue would not be fatal, and thus it would be unfair to lead a bidder to believe that it could address this particular bid requirement after the opening and later re-Iabel the requirement as relating to responsiveness. We agree. The CPA had broad discretion to define its terms and make responsibility 11  determinations. It fairly put bidders on notice as to what was required and there was no fraud or bad faith evident in the process. 122 PSA also argues that AIC should not have been allowed to pool its resources with subcontractor Diebold to prove its qualifications. The Appeals Board ruled this was a matter of Bid Invite language interpretation and that the obvious goal of this provision was to insure the successful bidder had the "ability and capacity to perform all contract requirements." Because the requirements of equipment, spare parts and staffing were matters of responsibility, the CPA had broad discretion to make its determination. The fact that AIC pooled its resources to prove its qualifications does not implicate bad faith or fraud. Absent any other allegations of bad faith or fraud, we find that the CPA's determination of responsibility cannot be overturned. 123 Looking at responsIveness, PSA cites several unpublished decisions to support the contention that AIC's bid was unresponsive because failure to provide an equipment and spare parts list is a matter of responsiveness. We do not find these decisions to have precedential value. Rule 51, Rules of Appellate Procedure (as amended by Judicial Administrative Order No. 2004-300, Sept. 3, 2004). See Kaainoa u. Cabrera, 6 N.M.I. 634, 637, In. 7 (N. Mariana Islands, 2003). In addition, PSA cites no case law prohibiting the soliciting agency from classifying something that could be considered as an issue of "responsiveness" as one of "responsibility." 12 124 Ale's bid as submitted was responsive because it was in conformity with the material terms of the invitation for bids. The bid proposal contained a precise figure for which the contractor offered to complete the job. As discussed above, certain issues which may arguably be classified as responsive were here classified as issues of responsibility in the invitation to bid and therefore addressed in that context. Ale's bid remained responsive by offering to provide the exact thing called for in the invitation for bids at the offered price. 2. AIC's Cure of its Bid 125 Next, PSA argues the selection and award to AIC was unlawful because AIC was wrongfully allowed to cure its unresponsive bid after opening of the bids. PSA asserts it was an abuse of discretion for the CPA to notify AIC at a separate meeting after the bids were open that some of the quantities in their original bid were incorrect, and to allow them the opportunity to refuse the contract award. The Bid Invite called for 1000 magnetic card readers and AIC offered only 100. PSA argues this action contradicted the proper application of Commonwealth Procurement Regulations, CPA Procurement Regulations and established case law. 126 PSA believes the CPA cannot justify this action in light of Commonwealth Procurement Regulations, 23 Comm. Reg. No. 5, which permits corrections of bids in 13  certain instances but does not allow an otherwise low bidder to change its bid. 3 PSA further contends application of § 3.2(8) of CPA's Procurement Regulations also prohibits allowing AIC to alter its bid. The language of this provision is virtually identical to the Commonwealth Procurement Regulations with the exception being approval of bid correction under this provision is made by the contracting officer instead of the Director of Procurement and Supply. See Commonwealth CPA Procurement Regulations § 3.2(8). 1[27 PSA cites Grade Construction v. United States, 7 Cl. Ct. 263 (CL Ct. 1985) for the proposition that in relation to a provision concerning responsiveness, the government cannot allow a bidder to cure or correct a bid regardless of how de minimis or negligible the impact upon the price of the item bid. Grade Construction, 7 3 23 Cormn. Reg. No. 5 provides in pertinent part that [c]orrection or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards based on bid mistakes must be approved by the P&S Director in writing. After the bid opening. no changes in bid price or other provisimlS of bids prejudicial to the interests of the government or fair competition shall be allowed. Whenever a bid mistake is suspected, the government shall request confirmation of the bid prior to award. In such an instance, if the bidder alleges an error, the government shall only permit correction of the bid or withdrawal of the bid in accordance with subparagraph (a) m (b). Correction of bids. Correction of bids shall only be permitted when: (l)an obvious clerical mistake is evident from examining the bid document. Examples of SUcll mistakes are errors in addition or the obvious misplacement of a decimal point; or (2)the otherwise low bidder alleges a mistake and the intended bid is evident from the bid document or is otherwise supported by clear and convincing evidence as to the bid intended and the corrected bid remains the low bid. A lower bid shall not be permitted to correct a bid mistake resulting from an error of judgment. 14  Cl. Ct. at 273. In Grade Construction the court prevented the lowest bidder who had previously failed to acknowledge a bid amendment from later acknowledging the bid amendment. PSA argues the CPA put AIC into the position where it could decide to accept the additional items or avoid the contract, a situation Grade Construction explicitly prohibits. 1[28 Grade Construction is inapplicable here. CPA Procurement Rule § 3.2(8)(a)(i) allows a bidder to correct a bid when "an obvious clerical mistake is clearly evident from examining the bid document." The CPA acknowledged that Ale's bid provided for fewer electronic components than what the bid required. The Appeals Board ruled this quantity deficiency was not an issue of responsiveness because AIC was willing to provide the additional quantities without changing the bid price. We agree. As a result, Ale essentially transformed its understatement of quantities from a responsive issue to a typographical error. Thus, AIC was still offering to provide the exact thing called for in the Bid Invite at the offered price. 129 Further, it was not an abuse of discretion for the CPA to accept Ale's bid, which provided the additional required equipment at no charge to the CPA. Instead of withdrawing its bid, Ale chose to offer the additional quantities at the original bid price. Had AIC refused to provide the additional quantities or attempted to Commonwealth Procurement Regulations § 3-102(12). 15  amend its bid price, the CPA would have rejected the bid. Therefore, the CPA's award of the project contract to AIC was not unlawful. 3. Arbitrary or Capricious Conduct of CPA 130 Next, PSA argues that CPA demonstrated favoritism and the kind of "arbitrary and capricious" conduct that competitive bidding laws are meant to prevent when it awarded the contract to Ale. PSA reasserts all of its arguments induding the assertions that (1) AIC did not identify the required equipment and spare parts listings for components of an airport security system required by the Bid Invite, (2) AIC failed to specify the quantities of card readers and spare cards, (3) AIC was allowed to amend its bid after opening to correct these deficiencies, and (4) the CPA wrongfully allowed AIC to use a subcontractor to satisfy the Bid Invite personnel requirement. 131 Recognizing the several standards of review set forth in 1 CMC § 9112(£), this Court finds no merit in PSA's assertion that the CPA's award to AIC was "arbitrary and capricious" or the result of favoritism. There was nothing irrational in the CPA's selection process or its ultimate decision to award the project to Ale. First, the CPA sought professional technical advice from the very start of the Bid Invite process, employing the Project Manager, an expert in the bidding selection process, as a consultant. Second, the CPA solicited bids through a Bid Invite that required bidders to meet specific qualifications as to both responsibility and responsiveness. 16  AIC was the lowest responsive responsible bidder and was therefore awarded the project. PSA, who was the second lowest bidder, was allowed to protest the bidding process and was heard by the CPA's Executive Director who thoughtfully addressed the protest and produced a clear and rational multi-page written decision upholding the award to Ale. PSA then appealed this decision to the CPA Appeals Committee. The Appeals Committee issued a detailed rational written decision thoroughly considering and addressing all the facts and legal arguments PSA had brought before it. Nothing the CPA did during the selection or administrative appeals process fails scrutiny under 1 CMC § 9112(f). Accordingly, we find that the award to AIC was not arbitrary or capricious. 4. CPA Appeals Board as an Impartial Tribunal 132 Article I, § 5, of the CNMI Constitution provides due process protection in the Commonwealth much like the Fourteenth Amendment of the United States. Com. of Northern Mariana Islands v . Bergonia, 3 N.M.1. 22 (1992). Accordingly, we apply Article I, § 5 using the same analysis as the Fourteenth Amendment to the United States Constitution. Id. Due process prevents the State from depriving a plaintiff of a protected property interest without "a fair trial in a fair tribunal." See In re Murchison, 349 U.S. 133, 136 (1955). PSA argues the CPA Appeals Committee showed bias in considering its appeal because the CPA Board of Directors hired counsel to appear on the CPA's behalf concerning PSA's injunction lawsuit, Civil 17  Action No. 02-005. The CPA took a position m the injunction hearing, which concerned the identical factual circumstances as PSA's administrative appeaL PSA argues the CPA's position at the injunction hearing showed that the Appeals Board had in some measure pre-adjudged the facts as well as the law since the CPA affirmatively argued the selection and award to AIC was proper. In addition, PSA argues that the CPA Appeals Committee acting as a decision maker additionally had a strong motive to rule in a way that aided the institution. See Alpha Epsilon Phi Tau Chapter Housing Assn. v. City of Berkeley, 114 F.3d 840, 844 (9th Cir. 1997). 133 PSA's due process arguments fail in their entirety. In order to find a due process violation, we look to the test set forth in Alpha Epsilon: Tumey v. Ohio and its progeny establish two main categories of due process challenges based on structural bias. First, due process is violated if a decisionmaker has a "direct, personal, substantial pecuniary interest" in the proceedings. Id. Second, even if the decisionmaker does not stand to gain personally, due process may also be offended where the decisionmaker, because of his institutional responsibilities, would have "so strong a motive" to rule in a way that would aid the institution. Alpha Epsilon Phi Tau Chapter Housing Assn, 114 F.3d 840 at 844 (internal citations omitted). 134 Nothing m the record supports PSA's contention that the CPA's general counsel, the litigation counsel the CPA employed to handle the injunctive relief proceedings, the CPA Appeals Board, or any individual member thereof had a 18  direct, personal, substantial pecuniary interest in the proceedings, or was in any way impartial or predisposed to deciding against PSA in the administrative appeals process. In addition, there is no motive for the CPA to rule in a specific way because of the decision-maker's institutional responsibilities. This is not a case like Alpha Epsilon, where the decision-maker Board regulated the entities that directly funded its operations. Alpha Epsilon Phi Tau Chapter Housing Assn. v. City of Berkeley, 114 F.3d at 842. Here we have a contract to perform work on the airport which has nothing to do with the survival of the CPA as an institution. 135 In addition, there exists a presumption that an agency will follow its regulatory directives by invalidating "any of its own actions that it finds to be illegal." Rivera v. Guerrero, 4 N.M.1. 79, 83 (1993). Members of an appeals committee are presumed to be impartial and fair: The courts have long applied the presumption that policymakers with decision-making power exercise their power with honesty and integrity. The burden of overcoming the presumption of impartiality "rests on the party making the assertion [of bias]," and the presumption can be overcome only with convincing evidence that "a risk of actual bias or prejudgment" is present. In other words, any alleged prejudice on the part of the decisionmaker must be evident from the record and cannot be based on speculation or inference. Nauastar International Transport. v. E.P.A., 941 F.2d 1339, 1360 (6th Cir. 1991)(intemal citations omitted). PSA has failed to point to anything in the record that warrants this Court ruling there was a risk of actual bias or prejudgment inherent in the CPA 19  Appeals Board. Therefore, the Court finds no impartiality in the makeup or execution of the CPA's administrative appeals process and no due process violation in the resulting decision. 136 Because the Court finds the CPA's award to AIC proper, the Court declines to address the issue of lost profits. CONCLUSION 137 For the reasons above, this Court holds the CPA's selection and award of the Saipan International Airport Security Access System Phase II Project to AIC was lawful and the decision of the CPA Appeals Board and trial court is AFFIRMED. Because the award to AIC was lawful, PSA is not entitled to bid preparation costs, attorneys' fees, or any other costs incurred in pursuing its bid protest or resultant litigation including this appeal. SO ORDERED this 13th day of July, 2006. lsi Miguel S. Demapan MIGUEL S. DEMAPAN Chief Justice lsi Robert J. Torres lsi Michael J. Em'dallo ROBERT J. TORRES MICHAEL I BORDALLO Associate Justice Pro Tempore Associate Justice Pro Tempore 20