Supreme Court No. CVA18-022 in the SUPREME COURT of GUAM

Supreme Court No. CVA18-022

IN THE SUPREME COURT OF GUAM

DFS GUAM L.P.,

Plaintiff-Appellee/Cross-Appellant,

vs.

THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM,

Defendant-Appellant/Cross-Appellee.

______

Appeal from the Superior Court of Guam Superior Court Case Nos. CV0943-14, CV0094-15, CV0198-15

______

REDACTED PRINCIPAL AND RESPONSE BRIEF OF PLAINTIFF-APPELLEE / CROSS-APPELLANT DFS GUAM L.P. SUBMITTED PURSUANT TO JANUARY 31, 2019 ORDER

MAURICE SUH G. PATRICK CIVILLE JAY SRINIVASAN JOYCE C.H. TANG GIBSON, DUNN & CIVILLE & TANG, PLLC CRUTCHER LLP 330 Hernan Cortez Avenue, 333 South Grand Avenue Suite 200, Hagåtña, Guam 96910 Los Angeles, CA 90071 Telephone: (671) 472-8868 Telephone: (213) 229-7260 Facsimile: (671) 477-2511 Facsimile: (213) 229-6260

Attorneys for Plaintiff-Appellee / Attorneys for Plaintiff-Appellee / Cross-Appellant Cross-Appellant

Pursuant to the Court’s January 31, 2019 Order on Plaintiff-Appellee/Cross-

Appellant DFS Guam L.P.’s Motion to Seal Portions of DFS Guam L.P.’s

Principal and Response Brief filed January 15, 2019, DFS hereby files its redacted version of the Principal and Response Brief of Plaintiff-Appellee / Cross-Appellant

DFS Guam, L.P.

Respectfully submitted this 1st day of March, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam, L.P.

CERTIFICATE OF SERVICE

I, G. PATRICK CIVILLE, hereby certify that on the 1st day of March, 2019,

I caused the Redacted Principal and Response Brief of Plaintiff-Appellee / Cross-

Appellant DFS Guam, L.P. Submitted Pursuant to January 31, 2019 Order to be served electronically under the Supreme Court’s electronic filing system and pursuant to the electronic filing rules, addressed to the following:

Attorneys for Defendant-Appellant / Cross-Appellee Antonio B. Won Pat Int’l Airport Authority, Guam

Kathleen V. Fisher, Esq. Genevieve P. Rapadas, Esq. Jay D. Trickett, Esq. Sarah L. Fabian, Esq. Calvo Fisher & Jacob, LLP 259 Martyr Street, Suite 100 Hagåtña, Guam 96910

Dated this 1st day of March, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam, L.P.

Supreme Court No. C

IN THE SUPREME COURT OF GUAM

DFS GUAM L.P.,

Plaintiff-Appellee/Cross-Appellant,

vs.

THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM,

Defendant-Appellant/Cross-Appellee.

______

Appeal from the Superior Court of Guam Superior Court Case Nos. CV0943-14, CV0094-15, CV0198-15

______

[FILED PROVISIONALLY UNDER SEAL]

PRINCIPAL AND RESPONSE BRIEF OF PLAINTIFF-APPELLEE / CROSS-APPELLANT DFS GUAM L.P.

Attorneys for Plaintiff-Appellee / Attorneys for Plaintiff-Appellee / Cross-Appellant Cross-Appellant

CERTIFICATE AS TO INTERESTED PARTIES The undersigned, counsel of record for DFS Guam L.P., certifies that to the best of his knowledge, there are no known interested parties other than the parties and attorneys participating in the case. These representations are made to enable

Justices of the Court to evaluate possible recusal.

Counsel also certifies that the judge presiding over this case in the Superior

Court of Guam, Case No. CV0943-14, CV0094-15, CV0198-15, was the

Honorable Arthur R. Barcinas. No Justice of this Court participated in this case.

Respectfully submitted this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

CORPORATE DISCLOSURE STATEMENT DFS Guam L.P. submits the following disclosure with respect to its ownership: DFS Guam L.P. is a Guam limited partnership. The general partner is

DFS Group Limited, a Delaware corporation. The limited partners are LVMH

Moet Hennessy Louis Vuitton Inc., a Delaware corporation, and Micronesian L.P., a Guam limited partnership.

These representations are made to enable Justices of the Court to evaluate possible recusal.

Respectfully submitted this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

TABLE OF CONTENTS Page

I. INTRODUCTION ...... 1

II. STATEMENT OF JURISDICTION ...... 4

III. ISSUES PRESENTED FOR REVIEW ...... 5

A. Issues Presented by GIAA’s Appeal ...... 5

B. Issues Presented by DFS’s Cross-Appeal ...... 6

IV. STATEMENT OF THE CASE ...... 7

V. STATEMENT OF FACTS ...... 8

A. GIAA and Lotte Engage in Substantial Misconduct...... 9

B. DFS’s First Protest ...... 15

C. GIAA’s Executive Manager Signs the Purported Contract the Very Next Day (A Saturday) After Denying DFS’s Protest...... 15

D. DFS Challenges the Denial of its First Protest...... 16

1. The Trial Court’s Dismissal of the Initial Action, and GIAA’s Ensuing Appeal...... 17

2. The Public Auditor Declines to Hear DFS’s Appeal Of The First Protest...... 18

E. DFS’s Second Protest ...... 19

F. DFS’s Third Protest...... 20

G. DFS Brings Three Consolidated Protest Actions in the Superior Court...... 22

1. The First Protest Action...... 22

2. The Second Protest Action...... 23

3. The Third Protest Action ...... 23

i TABLE OF CONTENTS (continued)

Page

H. The Superior Court Correctly Treated This Proceeding as a Civil Action and Diligently Moved the Case Forward...... 24

I. Summary Judgment...... 25

J. DFS’s Rule 59(e) Motion, and GIAA’s Efforts to Circumvent the Superior Court’s Rulings and February 5 Judgment...... 26

VI. STANDARDS OF REVIEW ...... 28

VII. SUMMARY OF ARGUMENTS IN RESPONSE TO GIAA’S APPEAL ...... 29

VIII. ARGUMENTS IN RESPONSE TO GIAA’S APPEAL ...... 32

A. The Superior Court Properly Exercised Subject Matter Jurisdiction Over DFS’s Protest Actions...... 32

B. The Superior Court Correctly Adjudicated the Protest Actions as Civil Actions, Not as a Narrow, Deferential Review of the Administrative Record...... 34

C. GIAA’s Exhaustion Arguments are Baseless...... 36

1. This Court Can Affirm Summary Judgment to DFS in the Third Protest Action Based Solely on DFS’s § 1203.1(a)(2) Claim, Which DFS Indisputably Raised in the Third Protest...... 37

2. The Superior Court Properly Exercised its Broad Jurisdiction Under § 5480...... 38

3. GIAA Relies on Inapposite Case Law...... 42

4. In Any Event, DFS Was Exempt from Exhausting Pure Questions of Law...... 44

D. The Superior Court Properly Granted Summary Judgment to DFS on its Solicitation Method and Procurement Record Claims Even Though These Claims Were Not Included in DFS’s Complaint...... 45

ii TABLE OF CONTENTS (continued)

Page

E. The Superior Court Correctly Rejected GIAA’s Timeliness Arguments as to DFS’s Third Protest...... 47

1. DFS Timely Filed its Third Protest Within 14 Days of Learning the Facts Giving Rise to the Protest...... 48

2. DFS’s Timely First Protest Equitably Tolled the Time for Filing DFS’s Third Protest...... 52

F. Even if DFS’s Third Protest Were Untimely, the Superior Court Still Properly Considered DFS’s Claim Concerning GIAA’s Failure to Adopt Criteria Required by § 1203.1(a)(2)...... 53

G. The Superior Court Correctly Granted DFS’s Motion for Summary Judgment, and Denied GIAA’s Motion, in the Third Protest Action...... 55

1. The Superior Court Properly Found that GIAA Violated the Automatic Stay...... 56

2. The Superior Court Correctly Found that GIAA Violated § 1203.1(a)(2) by Failing to Promulgate and Adopt the Requisite Criteria for Airport Concessions...... 59

3. The Superior Court Correctly Found that GIAA’s Solicitation Method Was Unlawful...... 60

4. The Superior Court Properly Granted Summary Judgment to DFS on its Claims Regarding the Procurement Record...... 67

5. The Superior Court Correctly Found that GIAA Violated the Procurement Law’s Mandate of Fair and Equitable Treatment to All Persons Dealing with the Procurement System...... 72

H. The Superior Court’s Remedies Were Lawful and Well Within the Court’s Discretion...... 73

I. DFS’s First Protest was Pre-Award and Timely...... 76

iii TABLE OF CONTENTS (continued)

Page

1. The Superior Court Properly Focused on When DFS Became “Aggrieved.” ...... 76

2. GIAA Misconstrues § 5425 and Relies on Inapposite Case Law...... 81

3. To the Extent this Court Rejects DFS’s Argument Regarding the Timeliness of its First Protest, Disputed Material Facts Preclude Summary Judgment in GIAA’s Favor...... 84

J. The Superior Court Correctly Found that Genuine Issues of Material Fact Preclude Summary Judgment to GIAA in the Second Protest Action...... 86

1. The Superior Court Correctly Denied GIAA Summary Judgment As to the Increased Financial Offers...... 87

2. The Superior Court Correctly Denied Summary Judgment to GIAA on Out-of-Scope Benefits...... 91

IX. SUMMARY OF ARGUMENTS IN SUPPORT OF DFS’S CROSS- APPEAL ...... 93

X. ARGUMENTS IN SUPPORT OF DFS’S CROSS-APPEAL ...... 93

A. The Superior Court Improperly Dismissed the First and Second Protest Actions as Moot...... 93

B. The Superior Court Improperly Denied Costs To DFS...... 97

XI. CONCLUSION ...... 100

TABLE OF AUTHORITIES Page(s) Cases Abalos v. Cyfred Ltd., 2006 Guam 7 ...... 66

Aguon v. Gutierrez, 2002 Guam 14 ...... 61

Air Line Pilots Ass’n, Intern. V. UAL Corp., 897 F.2d 1394 (7th Cir. 1990) ...... 94

In re Application of Guerrero, 2005 Guam 1 ...... 29

Arco Mgmt. of Washington, D.C., Inc., (Comp. Gen.) 1992 WL 310270 (Oct. 13, 1992) ...... 83

Ass’n of Cleveland Fire Fighters v. City of Cleveland, 2010 WL 11488998 (Ohio Com. Pl. 2010) ...... 47

Barrett-Anderson v. Camacho, 2015 Guam 20 ...... 44, 55, 85

Blue & Gold, Fleet, L.P. v. U.S., 492 F.3d 1308 (Fed. Cir. 2007) ...... 82

Bureau Veritas N. Am. v. Dep’t of Transp., 127 A.3d 871 (Pa. Commw. Ct. 2015) ...... 83

Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016 (9th Cir. 2003) ...... 29

City & Cty of San Francisco v. United States, 130 F.3d 873 (9th Cir. 1997) ...... 82

Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) ...... 47 COMINT Sys. Corp. v. U.S., 700 F.3d 1377-1382-83 (Fed. Cir. 2012) ...... 82

v TABLE OF AUTHORITIES (continued)

Page(s)

CRAssociates, Inc. v. U.S., 102 Fed. Cl. 698 (Fed. Cl. 2011) ...... 82

Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000) ...... 46

Data General Corp. v. Johnson, 78 F.3d 1556 (Fed. Cir. 1996) ...... 77

Data Mgmt. Res., LLC v. Office of Pub. Accountability, 2013 Guam 27 ...... 28, 59, 99

Dayton-Granger, Inc. Reconsideration, (Comp. Gen.) 1992 WL 48464 (Feb. 28, 1992) ...... 83-84

DFS Guam L.P. v. The A.B. Won Pat International Airport Authority, Guam and Lotte Duty Free Guam LLC, 2014 Guam 12 ...... 18, 41, 53, 99

Epling v. U.S., 958 F. Supp. 312 (W.D. Ky. 1997) ...... 99

Ervin & Associates, Inc., (Comp. Gen.) 1998 WL 126843 (Mar. 23, 1998)...... 84

Fleet Services, Inc. v. Dep’t of Admin., 2006 Guam 6 ...... 39, 40, 41, 42, 43, 44, 54, 60, 63

GMHA v. Civil Service Commission, 2015 Guam 18 ...... 36

Government of Guam v. 162.40 Square Meters of Land More or Less, Situated in Municipality of Agana, 2011 Guam 17 ...... 66

GTE Hawaiian Telephone Co., Inc. v. County of Maui, PCH 98-6, 10 (December 9, 1998) ...... 84

Guam Elec. Comm’n v. Responsible Choices for All Adults Coal., 2007 Guam 20 ...... 29

vi TABLE OF AUTHORITIES (continued)

Page(s)

Guam Greyhound, Inc. v. Brizill, 2008 Guam 13 ...... 59

Guam Housing and Urban Renewal Auth. v. Dongbu Ins. Co., 2001 Guam 24 ...... 53

Guam Imaging Consultants, Inc. v. Guam Mem’l Hosp. Auth., 2004 Guam 15 ...... 56, 78, 79

Guam v. Quinata, 704 F.2d 1085 (9th Cir. 1983) ...... 66

Guam Top Builders, Inc. v. Tanota Partners, 2012 Guam 12 ...... 73

Guam YTK Corp. v. Port Auth. of Guam, 2014 Guam 7 ...... 28-29

Hammett v. Cofield, 681 F.3d 945 (8th Cir. 2012) ...... 48

Hawaiian Rock Prods. Corp. v. Ocean Hous., Inc., 2016 Guam 4 ...... 28, 57

Howard v. F.A.A., 17 F.3d 1213 (9th Cir. 1994) ...... 48

In re I Mina’Trentai Dos Na Liheslaturan Guahan, 2014 Guam 24 ...... 62

In the Appeal of Eons Enter. Corp., OPA-PA-10-003 (July 20, 2013) ...... 77

In the Appeal of JMI Edison, OPA-PA-13-009 (Nov. 27, 2013) ...... 77

Infrastructure Def. Techs. v. U.S., 81 Fed. Cl. 375 (2008) ...... 82

James Hamilton Const. v. State ex rel. New Mexico State Highway, 133 N.M. 627 (N.M. 2003) ...... 83

vii TABLE OF AUTHORITIES (continued)

Page(s)

K.S. v. R.I. Bd. of Educ., 44 F. Supp. 3d 193 (D.R.I. 2014) ...... 44

Kimmins Thennal Corp., (Comp. Gen.) 1990 WL 278456 (Sept. 12, 1990) ...... 83

Lester H. by Octavia P. v. Gilhool, 916 F.2d 865 (3d Cir. 1990) ...... 44

Limtiaco v. Guam Fire Dep’t, 2007 Guam 10 ...... 85

M Elec. Corp. v. Phil-Gets (Guam) Int’l Trading Corp., 2016 Guam 35 ...... 5

Marx v. General Revenue Corp., 568 U.S. 371 (2013) ...... 98

Medcenter One, Inc. v. N. Dakota State Bd. of Pharm., 561 N.W.2d 634 (N.D. 1997) ...... 45

Molinary v. Powell Mountain Coal Co., 76 F. Supp. 2d 697 (W.D. Va. 1999) ...... 94

Newby v. Gov’t of Guam, 2010 Guam 4 ...... 41

Nissan Motor Corp. in Guam v. Sea Star Grp. Inc., 2002 Guam 5 ...... 29

Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010) ...... 57

Pac. Rock Corp. v. Dep’t of Educ., 2000 Guam 19, opinion adhered to as modified on reh’g, 2001 Guam 21 ...... 29, 64

Powell v. McCormack, 395 U.S. 486 (1969) ...... 96

Rapadas v. Benito, 2011 Guam 28 ...... 29, 94

viii TABLE OF AUTHORITIES (continued)

Page(s)

Reep, Inc., (Comp. Gen.) 2002 WL 31103566 (Sept. 20, 2002) ...... 83

Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) ...... 98

Siskiyou County Farm Bureau v. Dep’t of Fish & Wildlife, 237 Cal. App. 4th 411 (2015) ...... 63-64

Smith v. Transworld Sys., Inc., 953 F.2d 1025 (6th Cir. 1992) ...... 46

Southern Pacific Transportation Co. v. Public Utility Commission, 9 F.3d 807 (9th Cir. 1992) ...... 96

Spencer v. Connecticut, 560 F. Supp. 2d 153 (D. Conn 2008) ...... 47

Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275 (10th Cir. 1998) ...... 46

Sumitomo Const., Co., Ltd. v. Gov’t of Guam, 2001 Guam 23 ...... 66

Synergy Solutions, Inc. v. United States, 133 Fed. Cl. 716 (Fed. Cl. 2017) ...... 81

Tanaguchi-Ruth + Associates v. MDI Guam Corp., 2005 Guam 7 ...... 75

Teleguam Holdings LLC v. Guam, 2015 Guam 13 ...... 58

Teleguam Holdings LLC v. Guam, 2018 Guam 5 ...... 16, 28, 30, 33, 35, 36, 39, 42, 67, 69, 71, 77, 78

Town House Dep’t Stores, Inc. v. Dep’t of Educ., 2012 Guam 25 ...... 29, 41

Town House Dep’t Stores v. Ahn, 2000 Guam 32 ...... 94

ix TABLE OF AUTHORITIES (continued)

Page(s)

Tumon Partners, LLC v. Shin, 2008 Guam 15 ...... 94

Ukau v. Wang, 2016 Guam 26 ...... 59

Yoshida v. Guam Transport & Warehouse, Inc., 2013 Guam 5 ...... 46

Statutes 12 GCA § 1101, et seq...... 20

12 GCA § 1203.1(a)(1) ...... 20, 61, 62, 63, 64

12 GCA § 1203.1(a)(2) ...... 2, 20, 25, 31, 37, 48, 49, 53, 55, 59, 60, 71

2 GAR, Div. 4 § 12103(b) ...... 40

2 GAR. Div. 4 § 12116 ...... 33, 34

2 GAR, Div. 4, § 2112 ...... 63

2 GAR, Div. 4, § 3114(a) ...... 63

2 GAR, Div. 4 § 9101(i) ...... 40

5 GCA § 5001(b)(1) ...... 72, 73

5 GCA § 5001(b)(4) ...... 93

5 GCA § 5121(a) ...... 63

5 GCA § 5210 ...... 60, 61, 62

5 GCA § 5216 ...... 63

5 GCA § 5216(a) ...... 63

5 GCA § 5249 ...... 67, 69

5 GCA § 5249(b) ...... 68 5 GCA § 5250 ...... 67, 69

x TABLE OF AUTHORITIES (continued)

Page(s)

5 GCA § 5425(a) ...... 48, 54, 58, 76, 77, 82

5 GCA § 5425(g) ...... 2, 6, 32, 52, 54, 56, 57, 58, 75

5 GCA § 5451 ...... 5, 32, 73, 75, 95

5 GCA § 5480 ...... 41, 95

5 GCA § 5480(a) ...... 5, 6, 95

5 GCA § 5480(c) ...... 6, 95

5 GCA § 5481(a) ...... 30, 33, 54

5 GCA § 5703 ...... 36

5 GCA § 5704 ...... 36

Public Law 21-135:3 ...... 20

Other Authorities Black’s Law Dictionary (10th ed. 2014) ...... 63, 77

Guam Leg. Comm. on Transportation, Telecommunications & Micronesian Affairs, P.L. 24-255, Comm. Rep. (1998) ...... 65

Guam Leg. Comm. on Ways and Means, P.L. 21-135, Comm. Rep. (1992) ...... 65

Rules Guam R. App. P. 4(a)(1) ...... 5

Guam R. Civ. P. 54(d)...... 4, 7, 27, 93, 97, 98, 99, 60

Guam R. Civ. P. 61 ...... 29

Local Rule 54.1 ...... 98

Regulations 4 C.F.R. § 21.2(a) ...... 82

I. INTRODUCTION The underlying litigation arises from defendant A.B. Won Pat International

Airport Authority, Guam’s (“GIAA”) award of a Guam airport specialty retail concession contract (“Contract”) to Lotte Duty Free Guam, LLC (“Lotte”) in 2013.

Plaintiff DFS Guam L.P. (“DFS”) presented compelling evidence that the entire procurement process was rigged from the outset: GIAA and Lotte engaged in a deliberate, coordinated, and unlawful effort to install Lotte as the concessionaire at the Airport and to deprive DFS and the other proposers a fair and equitable opportunity to obtain the concession. Ultimately, the Superior Court granted summary judgment to DFS in one of its three consolidated civil actions brought under 5 GCA § 5480. The Superior Court also denied summary judgment to

GIAA in all three consolidated actions.

As DFS established below, GIAA did not proceed as a neutral procuring government agency that welcomes transparency through an in-depth review of its solicitation process. To the contrary, GIAA vigorously sought to hide from DFS, the Superior Court, and—most importantly—the public its and Lotte’s misconduct in connection with this procurement. But the evidence eventually left no doubt that GIAA and its representatives engaged in rampant wrongdoing and abuse— government corruption and self-dealing at its worst.

On the eve of trial, the Superior Court granted summary judgment to DFS in one of the three consolidated actions below, on relatively straightforward grounds, finding that (a) GIAA violated the statutory automatic stay of 5 GCA § 5425(g), by moving forward with the award to Lotte even after DFS had lodged its protest;

(b) GIAA failed to comply with 12 GCA § 1203.1(a)(2) by not promulgating and adopting the requisite criteria governing concessions; (c) GIAA conducted its solicitation pursuant to a request-for-proposal method that is not permitted under

Guam law; and (d) the Procurement Record is materially incomplete and not certified, also in violation of Guam Law. As a result, the Superior Court cancelled, voided and/or set aside the solicitation and the concession agreement entered into between GIAA and Lotte. The court also denied summary judgment to GIAA in

DFS’s two other actions, finding disputed issues of material fact with respect to

DFS’s various claims of misconduct in connection with the solicitation and award.

On appeal, GIAA raises nearly a dozen issues for this Court’s review.

Tellingly, however, GIAA largely avoids attempting to explain or defend its misconduct on the merits, since the record establishes many serious, indefensible violations of Guam law and the terms of the solicitation itself. Instead, GIAA seeks refuge behind a series of misplaced distractions and distortions—pressing demonstrably flawed arguments focused on jurisdiction, exhaustion, and timeliness. GIAA also resorts to hyperbole, casting the Superior Court’s decisions

as extreme and unprecedented—even going so far as to accuse the court of rewriting Guam’s procurement law.

In reality, the Superior Court carefully adhered to this Court’s case law and the plain language of the Procurement Law in adjudicating the claims below.

GIAA, by contrast, contorts the relevant statutory text, miscites precedent, and dissembles into irrelevant discussions about policy, unsupported assertions of

“public harm,” and complaints about prior rulings that have nothing to do with the merits of the summary judgment decisions at issue on appeal. GIAA also routinely omits and misrepresents key undisputed facts that warrant summary judgment in

DFS’s favor.

The Superior Court properly rejected GIAA’s arguments and granted summary judgment to DFS. The only thing novel and unprecedented about this case is how far GIAA strayed from the range of acceptable conduct of a purportedly impartial government agency procuring a concession contract. And if

GIAA’s view of the law were correct (it is not), Guam’s judiciary would effectively be powerless to address this sort of gross misconduct by an agency.

DFS also cross-appeals on the following narrow grounds: First, the Superior

Court incorrectly dismissed DFS’s two remaining complaints as moot based on its erroneous assumption that it had no other remedies left to grant DFS. Second, the

Superior Court incorrectly denied costs to DFS even though GIAA never satisfied

its burden that DFS was not entitled to costs under Rule 54(d) of the Guam Rules of Civil Procedure (“GRCP”).

This Court should affirm the order granting summary judgment to DFS, including the cancelling, voiding and/or setting aside of the solicitation and the resulting concession agreement. In addition, the Court should remand the case to the Superior Court to award DFS its GRCP 54(d) costs and to conduct a trial on the remaining two complaints.

II. STATEMENT OF JURISDICTION The Superior Court had jurisdiction over each of DFS’s complaints pursuant to 5 GCA § 5480(a). DFS timely filed each complaint within 14 days after receipt of the Public Auditor’s recusal orders, which were the final administrative decision on each of its protests. See GIAA’s Excerpts of Record (“ER”) at ER1-ER65;

ER114-ER157; ER318-ER347.

DFS cross-appeals from the Amended Judgment filed on July 16, 2018, and all interlocutory orders entered in the consolidated proceeding below, including the

July 16, 2018 Decision and Order issued in Case Nos. CV0943-14, CV0094-15 and CV0198-15 (the “July 16 Order”), which disposed of all claims in the consolidated proceeding. ER9862-ER9874; ER9856-ER9859; ER9860-ER9861.

This Court has jurisdiction over the appeal from the Amended Judgment pursuant to 48 U.S.C.A. § 1424-l(a)(2), and 7 GCA §§ 3107(a), 3107(b), 3108(a), and

3108(b), and has jurisdiction over the interlocutory July 16 Order, which merges into the Amended Judgment for purposes of appeal. See M Elec. Corp. v. Phil-

Gets (Guam) Int’l Trading Corp., 2016 Guam 35 ¶¶ 34-37.

DFS filed its Notice of Appeal on August 6, 2018, which was within 30 days of the date of entry of the Amended Judgment and the July 16 Order. DFS’s

Supplemental Excerpts of Record (“SER”) at SER269-SER270. DFS’s cross- appeal is therefore timely. See Guam R. App. P. 4(a)(1), (3).

III. ISSUES PRESENTED FOR REVIEW

A. Issues Presented by GIAA’s Appeal. I. The Superior Court has jurisdiction “to determine whether a solicitation or award of a contract is in accordance with the statutes, regulations and the terms and conditions of the solicitation” (5 GCA § 5480(a)) and to cancel a solicitation or proposed award if it is in violation of law. 5 GCA § 5451. Here, the undisputed record established that GIAA’s proposed award of the concession to

Lotte violated Guam law and the terms and conditions of the solicitation and was properly canceled for four, independent reasons, any one of which is sufficient to find in DFS’s favor and cancel the RFP and award: (1) GIAA failed to promulgate and adopt certain criteria as required by its enabling legislation; (2) GIAA used an improper solicitation method; (3) GIAA’s procurement record was materially incomplete and never certified; and (4) GIAA failed to treat all proposers fairly and

equitably. Did the Superior Court properly cancel the solicitation and proposed award?

II. Title 5 GCA § 5425(g) provides that “[i]n the event of a timely protest,” an agency “shall not proceed further with the solicitation or with the award of the contract prior to final resolution of such protest, and any such further action is void” unless certain conditions not present here are satisfied. Here, DFS filed timely multiple protests, but GIAA failed to impose the statutory automatic stay and instead proceeded with the award of the concession to Lotte before the final resolution of DFS’s protests through the completion of all appeals. Did the

Superior Court properly find that GIAA violated the automatic stay provision and void GIAA’s purported concession agreement with Lotte?

B. Issues Presented by DFS’s Cross-Appeal. I. Title 5 GCA § 5480(a) provides that the Superior Court “shall have jurisdiction in actions at law or in equity, and whether the actions are for monetary damages or for declaratory, or other equitable relief,” and “[i]n addition to other relief and remedies, the Superior Court shall have jurisdiction to grant injunctive relief.” 5 GCA § 5480(c). Here, the Superior Court did not adjudicate all of

DFS’s claims nor did it provide DFS with all of its requested relief. Did the

Superior Court err when it dismissed DFS’s other two complaints as “moot”

because DFS still has unresolved claims in those complaints seeking additional available and effective remedies?

II. GRCP 54(d) provides that “[e]xcept when express provision therefor is made either in a statute of Guam or in the rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the Government of Guam . . . and agencies shall be imposed only to the extent permitted by law.” Here, DFS prevailed in its civil action against GIAA. Did the Superior Court abuse its discretion by denying DFS its costs pursuant to GRCP 54(d)?

IV. STATEMENT OF THE CASE The underlying litigation arises out of GIAA’s July 19, 2012 request for proposals (“RFP”), its improper finding on April 12, 2013 that Lotte was the most qualified proposer, and its decision to award and enter into the Contract in violation of Guam law.

DFS lodged three protests with GIAA1 and, after GIAA denied them and the

Public Auditor recused herself, DFS filed three lawsuits against GIAA, referred to as the First Protest Action, the Second Protest Action, and the Third Protest

Action. ER2618-ER2633; ER2674-ER2679; ER2684-ER2694; ER2680-ER2683;

1 DFS submitted the Second and Third Protests as it obtained new information about GIAA’s and Lotte’s misconduct, and prior to the Superior Court exercising jurisdiction over the RFP solicitation and award.

ER2634-ER2670; ER140-ER154; ER335-ER344; ER41-ER44; ER1-ER65;

ER155-ER157; ER114-ER157; ER345-ER347; ER318-ER347.

The consolidated action out of which this appeal arises challenges various violations of Guam law in GIAA’s solicitation and award of the Contract to Lotte.

The Superior Court (a) denied GIAA’s motions for summary judgment in all three

Protest Actions (ER8646-8685; ER8723-8743); and (b) granted DFS’s cross- motion for summary judgment in the Third Protest Action only (ER8686-ER8722).

As a result, the Superior Court voided the RFP and the Contract, stayed that relief pending this appeal, and dismissed the First and Second Protest Actions as moot.

See ER8686-ER8722; ER9856-ER9875.

These appeals followed.

V. STATEMENT OF FACTS On July 19, 2012, GIAA issued the RFP “to develop, construct, and operate a high quality speciality retail concession at the [Airport’s] Main Passenger

Terminal.” ER3314. Proposals were due on October 17, 2012. ER2540-

ER2545 ¶¶3-4. GIAA received four proposals: DFS—the incumbent concessionaire for several decades—Lotte, Shilla Duty Free, and JR Duty Free.

Id. ¶4.

A. GIAA and Lotte Engage in Substantial Misconduct. GIAA and Lotte engaged in unlawful and coordinated conduct that was designed to ensure that Lotte would be selected as the most qualified proposer.

Only GIAA’s most egregious misconduct is summarized below.

GIAA and Lotte repeatedly violated the RFP’s single-point-of-contact rule, which provides that during the pendency of the RFP “[p]roposers shall not communicate with any GIAA staff, Board Members or officials regarding this

RFP, except for the single point of contact for this RFP [Frank Taitano].” ER3324.

ER6110-ER6118

¶¶17-18; see also ER4483; ER4490; ER4657; ER5122:17-ER5124:23.

ER7768; see also ER7784:21-ER7797:10.

ER7769.

ER7806:11-ER7809:22; ER4491-ER4499; ER4533; ER4542-ER4543; ER4545;

ER4505-ER4514; ER4659-ER4660; ER4833-ER4834. Accordingly, GIAA and

Lotte violated 5 GCA § 5631(a) and the RFP,

ER3335.

ER4879-ER4883.

In addition,

Eduardo “Champ” Calvo— whose law firm represented GIAA in connection with the RFP, and controlled the responses to DFS’s protests (ER5188N-ER5188EE; ER5220-ER5221; ER5241-

ER5243; ER5261-ER5263; ER5265-ER5266; ER5276-ER5277; ER5286-

ER5294)— :

(SER168-SER176, ¶¶10, 12; ER4793-ER4799;

ER4487; see also ER4481-ER4490; ER4500-ER4531; ER4534-ER4540; ER4546-

ER4570; ER4581-4614; ER4631-ER4653);

(ER4565; ER4800-

ER4831; ER7836:3-ER7838:4);

(ER4536; ER4503; ER5019; ER5034 n.16; ER5038-

ER5039); and

(ER44883-ER4485; ER4499). Of course, Champ Calvo’s law firm is GIAA’s counsel that has defended all of the instant litigation.

(ER4592; ER4594; ER4596;

ER4835-ER4838 ¶¶2-14; ER5201:22-ER5202:16; ER5221:4-ER5225:2;

ER5205:6-ER5218:8);

(ER7822:20-

ER7823:4; ER7824:3-ER7825:17; ER7826:18-ER7828:22; ER4533; ER4545;

ER4574; ER4631-ER4653).

GIAA and Lotte also violated 5 GCA § 5630—prohibiting gratuities during procurements—and the single-point-of-contact rule (ER3334-ER3335; ER3324) when the then-Vice Chairman and another member of GIAA’s Board received gifts and met with high-ranking Lotte representatives during a September 26 and 27,

2012 trip to Seoul. ER2540-ER2545 ¶5; ER4503; ER2553:17-ER2559:19;

ER2638-ER2639; ER2647-ER2655; ER4612-ER4617; ER4886 at Resp. 34;

ER4898-ER4902; ER4904-ER4905 at Resp. 1, 2, 3; ER5075:6-ER5084:18;

ER5084:8-ER5086:20; ER5098:13-ER5099:7; ER5100:4-ER5101:1; ER5125:20-

ER5135:22; ER5136:17-ER5145:5; ER5147:25-ER5156:25; ER5157:7-ER5172:3;

ER5173:18-ER5174:21; ER5382:6-ER5386:22; ER5388-5458; SER193-SER263.

Lotte also submitted a false affidavit in its proposal attesting that it did not provide gratuities. ER4879-ER4883.

Remarkably, within days after the Korea trip, GIAA knew that Lotte had provided these gifts, yet rather than disqualify Lotte or publicly disclose Lotte’s misconduct, GIAA sought to cover it up by instructing its directors to return the gifts. ER5087:11-ER5093:5; ER5094:17-ER5095:21; ER5096:8-ER5097:14;

ER5164:20-ER5172:3; see also ER4906-4977; ER5090:19-ER5093:22;

ER5102:12-ER5110:12; ER5111:3-ER5115:12; ER5173:5-ER5174:21;

ER5175:19-ER5182:18; ER5183:4-ER5184:5; ER5185:20-ER5186:14.

Further, although the RFP prohibited proposers from changing their proposals after the submission deadline, GIAA permitted Lotte to make material changes after the deadline. See ER2540-2545 ¶4 (proposal deadline); ER2636

(proposal deadline); ER3311-ER3351 (Part II.G, Part II.J, Part III.D, Part III.F, and multiple references to submitting on proposal deadline). The RFP contained two elements for proposed rent: (1) a minimum annual guaranteed rent (“MAG Rent”)

and (2) a “Percentage Rent Rate,” which is a percentage of the proposer’s annual gross revenues. ER3315-ER3316; ER3339; ER3343; ER3349. In addition, each proposer identified its proposed capital investment for retail space improvements and other start-up costs. ER3342; ER3348-ER3349. After submission of its proposal (ER3373), Lotte improperly increased its (1) MAG Rent, which went from substantially less than DFS’s (ER5901; ER3371), to not-coincidentally less than a percent more than DFS’s (ER3515; ER3371); (2) Percentage Rent Rate

(ER5901; ER3515); and (3) capital investment (ER5898-ER5900; ER3515). See also ER5944-ER5992; ER3524-ER3537; ER6110-ER6118 ¶¶32-33.

The RFP also included a defined scope for the proposals. ER3314 (scope);

ER3317 (“Premises”); ER3338 (“Description & Location”); ER5854-5860 (maps).

Yet Lotte’s proposal included improvements clearly outside of the defined concession area—including renovations to the food court, bathrooms, and smoking lounge, and the installation of a children’s play area—and, thus, outside the scope of the RFP (the “Out-of-Scope Benefits”). ER5890-5895; ER3456-ER3457;

ER3490-3494; ER3515; see also ER7810:5-ER7811:17; ER7814:288:16-

ER7815:4; ER5886; ER5906; ER5908-ER5909. It also included offers of an additional “concession fee” from a non-existent Lotte downtown store and investments to a non-existent third-level of the Airport. ER5903-ER5904;

ER3504, ER3507-ER3509; ER3514-ER3515.

As public news of some of the foregoing violations came to light, GIAA attempted to sanitize its and Lotte’s various misconduct. Just prior to the March

28, 2013 board meeting to discuss the proposals, GIAA management invented an ad hoc procedure—the assignment of letter designations ostensibly to make the proposers anonymous—which was never used before and not authorized by the

Procurement Law, that was designed to be nothing more than a rubber-stamp of management’s recommendation; it prevented GIAA’s Board from meaningfully evaluating management’s recommendation, including how Lotte could possibly be the most qualified proposer despite its conduct during the Korea trip. ER822;

ER2588-ER2593; ER2642-ER4643; ER4887-ER4888 at Resp. 44; see also

ER6061-ER6065. The Board ultimately tabled this agenda item so that it could consider whether to use the ad hoc procedure. ER2593; ER2643.

On April 12, 2013, GIAA’s Board held a special meeting, at which it went forward with the manufactured ad hoc procedure. ER7905-ER7910; see also

ER2643-ER2644; ER2614. The Board found Lotte to be the most qualified proposer. ER7908-ER7915; see also ER2643-ER2644; ER2614.

On April 17, 2013, GIAA management conducted a negotiation session with

Lotte; in violation of the Procurement Law, however, GIAA did not record this session. ER6891-ER6894; ER3583-ER3599; ER3600-ER3691; see infra Section

VIII.G.4.

B. DFS’s First Protest. On April 23, 2013, DFS sent a letter to GIAA challenging its finding that

Lotte was the most qualified proposer (the “First Protest”). ER2618-ER2633.

DFS raised, among other things, that (1) Lotte had improper meetings with and provided gifts to GIAA’s Board members during the Korea trip; (2) Lotte’s proposal contained false affidavits; and (3) GIAA had improperly used letter designations in selecting the most qualified proposer. Id.

On Friday, May 17, 2013, at 5:32 p.m., GIAA notified DFS’s counsel that it had denied DFS’s First Protest. ER5003-ER5041.

C. GIAA’s Executive Manager Signs the Purported Contract the Very Next Day (A Saturday) After Denying DFS’s Protest. Less than a half hour after its notification to DFS, GIAA notified Lotte (at

5:55 p.m. on Friday, May 17, 2013) that it had denied DFS’s protest and requested a meeting at 8:00 am the next day, Saturday, May 18, 2013. ER5059-ER5063.

GIAA apparently believed (incorrectly) that the automatic stay was lifted during the period after it issued its denial, and, thus, the weekend meeting attempted to cut off DFS’s rights by immediately executing the Contract with Lotte before the sun even saw one court day.

After further unrecorded negotiations, GIAA management executed the

Contract with Lotte on that Saturday, May 18, 2013, without board approval.

ER2540-ER2545 ¶¶17-20; ER3692-ER3854. The Contract included a MAG Rent

exceeding $15.4 million, consistent with the enhanced financial offer Lotte submitted after the deadline. ER3796-ER3797.

GIAA’s Board did not approve the Contract until June 11, 2013, when the

Board convened a special meeting where the Contract and DFS’s protests and related litigation was discussed in a 1.5-hour-long executive session. ER6783-

ER6785. With no public discussion, one of the Directors moved to accept the recommendation of “Legal Counsel during Executive Session” (Calvo Fisher) and

“approve and confirm all prior actions taken by Management pertaining to” the

Contract, which passed. ER6784-ER6785.

D. DFS Challenges the Denial of its First Protest. The plain language of the Procurement Law and related regulations suggests that there are alternative tracks for an independent review following the agency’s denial of a protest. See Teleguam Holdings LLC v. Guam (“Teleguam-II”), 2018

Guam 5 ¶ 23 n.4. So, on May 30, 2013, DFS simultaneously initiated an appeal before the Public Auditor and a separate civil action in the Superior Court pursuant to 5 GCA § 5480(a) (CV0685-13) (the “Initial Action”) in order to forestall any argument regarding waiver of any right. ER45-ER65; ER4172-ER4188; see also

ER532-ER551; ER4189-ER4237. On June 5, 2013, the Public Auditor stayed the proceeding before her because of the pending Initial Action. ER519-ER523.

1. The Trial Court’s Dismissal of the Initial Action, and GIAA’s Ensuing Appeal. Notwithstanding the statutory automatic stay of the solicitation, GIAA pushed DFS to vacate the concession. ER6087. Accordingly, in the Initial Action,

DFS sought a temporary restraining order and a preliminary injunction to preclude

Lotte from taking possession of the concession. ER4238-ER4266; see also

ER309-ER317. GIAA opposed, arguing, among other things, that the Superior

Court lacked subject matter jurisdiction because DFS had not received a “final administrative decision” from the Public Auditor. ER4267-ER4286; ER4296-

ER4322. The trial court agreed with GIAA, dismissing the Initial Action without prejudice on the sole ground of exhaustion. ER4136-ER4143; see also ER4156-

ER4163.

GIAA then moved for sanctions against DFS and its counsel, arguing that

DFS filed the Initial Action for an improper purpose and knew or should have known that its complaint was frivolous. ER931-ER955; see also SER81-SER107.

The trial court denied the motions for sanctions in their entirety. ER4144-ER4155.

GIAA appealed the denial of its motion for sanctions and denial of GIAA’s motion for reconsideration seeking to have the trial court remove language from its order indicating that GIAA violated the automatic stay. (CVA13-035, CVA13-036).

On December 20, 2013, while GIAA’s appeal was pending, GIAA filed an

“objection” in the proceeding before the Public Auditor that “object[ed] to the

Public Auditor hearing [DFS’s] appeal.” SER111-SER120. GIAA argued that the

Public Auditor should recuse herself based on a purported conflict of interest. See id.

Less than two months later, GIAA filed its appellate brief in this Court.

ER9357-ER9415. Significantly, even though GIAA argued to this Court that DFS should be litigating its claims before the Public Auditor in the first instance, GIAA did not disclose that it was simultaneously objecting to the Public Auditor and pursuing her recusal. Id.; see also DFS’s Req. for Jud. Notice, Ex. A (Jan. 15,

2019) (DFS’s Response Br., CVA13-035); ER9416-ER9453.

On June 2, 2014, this Court affirmed the denial of GIAA’s motion for sanctions and held that the Superior Court should remove the violation-of- automatic-stay language from its order. DFS Guam L.P. v. The A.B. Won Pat

International Airport Authority, Guam and Lotte Duty Free Guam LLC (“DFS-I”),

2014 Guam 12 ¶¶ 15-33, 35. See also ER4164-ER4171.

2. The Public Auditor Declines to Hear DFS’s Appeal Of The First Protest. After the Court’s decision in DFS-I and following DFS’s request that the

Public Auditor issue a scheduling order and set a status conference, on September

19, 2014, GIAA moved to disqualify the Public Auditor, arguing that the Public

Auditor was subject to a conflict of interest. SER126-SER149. Reversing course after having DFS’s civil action dismissed so that it could be heard by the Public

Auditor, GIAA argued in its disqualification motion that the “[t]he Superior Court is now the tribunal in the best position to ensure that the integrity of the procurement process is preserved.” Id. at 139.

On September 30, 2014, the Public Auditor issued a “Dismissal Order

Declining Public Auditor Hearing” wherein she recused herself. ER41-ER44. The order stated:

[T]he Public Auditor declines this matter. Accordingly, this matter is DISMISSED. In accordance with 5 GCA § 5480, this procurement appeal must be taken to the Superior Court of Guam.

ER44.

E. DFS’s Second Protest. Meanwhile, on Monday, May 20, 2013, GIAA management publicly announced that they had executed the Contract with Lotte. ER6066-ER6068.

GIAA expressly touted aspects of Lotte’s proposal that violated the terms of the

RFP and Guam law, including the financial terms that Lotte improperly had changed and the Out-of-Scope Benefits. ER6066-ER6068; ER6073-ER6075;

ER6078-ER6080.

In light of GIAA’s public statements regarding the Out-of-Scope Benefits,

DFS submitted a second protest on May 29, 2013 (the “Second Protest”). ER2674-

ER2679.

DFS later received a copy of Lotte’s Proposal and Presentation, which demonstrated that Lotte improperly increased its financial terms. ER6083-

ER6085. As a result, DFS supplemented its Second Protest on June 7, 2013 to include this ground. ER2684-ER2694.

GIAA waited nineteen months to deny DFS’s Second Protest, doing so on

January 13, 2015. ER140-ER154.

F. DFS’s Third Protest. On September 24, 1992, the Legislature amended GIAA’s Enabling Act2 to add 12 GCA §1203.1, which states, among other things, that all exclusive concession agreements must be awarded by a “competitive proposal procedure, according to the General Services Administration rules and regulations . . . .”

Public Law 21-135:3. Section 1203.1(a)(2) further requires that concession agreements conform to “criteria . . . for the operation of a concession, other business or service provider [at the Airport].”

In approximately August 1995, pursuant to the mandate in § 1203.1, GIAA prepared “Non-Airline Lease and Concession Policies” (“1995 Policies”), which included several “agency determinations.” ER6320-ER6342. GIAA determined that the requirement for a “competitive proposal procedure” in § 1203.1(a)(1) was intended to refer to the competitive sealed bidding procedure set forth at 5 GCA §

2 GIAA’s powers are governed by statute, 12 GCA § 1101, et seq. (the “Enabling Act”).

5211. ER6324 (Art. I, §2.1); see also ER6325 (Art. I, §2.5); ER6334-ER6337

(Art. IV, §§1-2).

GIAA’s Board approved the 1995 Policies on September 14, 1995 in all respects relevant to this action. ER6316-ER6319; ER6403-ER6404; see also

ER2739-ER2742 ¶3; ER2743-ER2784. Over the years, however, depending on which position served its immediate interests, GIAA has taken contradictory positions as to whether the 1995 Policies were adopted. See infra Section VIII.E.1.

On May 24, 2013—after GIAA management and Lotte executed the

Contract—DFS submitted a Sunshine Act request to GIAA for (1) the “Non-

Airline and Concession Lease Policies referred to in Section 6.1.2 of the” Contract; and (2) “[a]ll documents reflecting any operational criteria adopted by the GIAA as required by 12 GCA 1203.1(a)(ii).” ER6764-ER6765. On June 3, 2013, GIAA responded that it “found no documents responsive” to DFS’s request. ER6766-

ER6767.

Four days later, on May 28, 2013, DFS filed the Third Protest based on

GIAA’s admitted failure to abide by § 1203.1 and all related obligations. ER2680-

ER2683.

GIAA waited almost two years, until February 5, 2015, to deny DFS’s Third

Protest. ER6772-ER6781.

G. DFS Brings Three Consolidated Protest Actions in the Superior Court. The action below consists of three separate lawsuits arising out of each of

DFS’s three protests, which the Superior Court eventually consolidated. ER8754-

ER8755.

1. The First Protest Action. On October 14, 2014, DFS filed the First Protest Action, CV0943-14. ER1-

ER65. DFS asserted numerous procurement claims against GIAA and Lotte based on improper contacts between certain GIAA Directors and Lotte in Korea, Lotte’s improper payment of success fees, Lotte’s submission of false affidavits, GIAA’s use of anonymous letter designations, and GIAA’s failure to impose the statutory automatic stay. ER1-ER40.

In response, GIAA took the position that the Superior Court still lacked subject matter jurisdiction because the Public Auditor’s September 30, 2014 recusal order dismissing DFS’s appeal, submitted in response to GIAA’s motion seeking recusal, did not expressly use the words “recusal” or “disqualification.”

SER54-SER69.

DFS sought and obtained a writ of mandate to the Public Auditor, directing her to confirm whether her order was a recusal or disqualification. ER110-ER112.

On February 12, 2015, the Public Auditor confirmed that “[t]he Dismissal Order was intended as a recusal from the exercise of jurisdiction pursuant to 2 GAR, Div.

4, § 12601 and a notification to all parties of that recusal,” and that “[t]he Public

Auditor . . . for the reasons stated in the Dismissal Order, recused herself from the

Appeal.” ER158-ER160.

2. The Second Protest Action. GIAA denied DFS’s Second Protest on January 13, 2015. ER140-ER154.

DFS promptly appealed to the Public Auditor on January 21, 2015. SER151-

SER167. Two days later, the Public Auditor issued an “Order of Recusal,” which stated that “the Public Auditor . . . has determined to recuse herself” and that

“[t]his appeal must now be taken to the Superior Court of Guam in accordance with 5 G.C.A. § 5480.” ER155-ER157.

Thus, on February 6, 2015, DFS filed the Second Protest Action in the

Superior Court, CV0094-15. ER114-ER139. DFS asserted procurement claims against GIAA and Lotte based on Lotte’s improper changes to material terms of its proposal, its inclusion of Out-of-Scope Benefits, and GIAA’s failure to comply with the automatic stay provision. Id.3

3. The Third Protest Action. GIAA denied DFS’s Third Protest on February 5, 2015. ER335-ER344.

DFS appealed to the Public Auditor on February 20, 2015. SER151-SER167.

3 In the First and Second Protest Actions, DFS also asserted interference claims against Lotte, which were severed from the Protest Actions and remain pending in the Superior Court. ER1-ER65; ER114-ER139.

Four days later, the Public Auditor issued an “Order of Recusal,” which used the same language as the recusal order in DFS’s appeal of the Second Protest. ER345-

ER347.

On March 10, 2015, DFS filed the Third Protest Action in the Superior

Court, CV0198-15. ER318-ER334. DFS asserted procurement claims based on

GIAA’s admitted failure to adopt the required statutory criteria governing concessions and failure to comply with the automatic stay provision. Id.

H. The Superior Court Correctly Treated This Proceeding as a Civil Action and Diligently Moved the Case Forward. GIAA’s Opening Brief repeatedly misstates the factual and procedural history below. At bottom, these mischaracterizations are not material to this appeal and DFS will refrain from responding to each of them. An example is instructive, however.

Contrary to GIAA’s assertions (Br. at 20-27), it was GIAA, not DFS, that sought to delay this case by, among other things, playing its shell game with the

Public Auditor; claiming that this action was only a review of its own decision making; and refusing to participate in discovery. ER9882-ER9890; ER877-

ER896; ER180-ER203; SER1-SER7; DFS’s Req. for Jud. Notice, Exs. B-D

(filings in WRM15-001 and CVA15-011). After the Superior Court rejected

GIAA’s years-long efforts to thwart discovery (ER413-ER426; ER675-ER676;

ER763; ER766), GIAA changed tactics and sought to force DFS to defend a prior,

premature summary judgment motion and go to trial before DFS obtained a meaningful opportunity to conduct discovery. See ER792; ER794-ER797; ER656-

ER665; ER691-ER694; ER742; ER766-ER767; ER801-ER802; ER804-ER814;

ER824-ER848; ER991-ER1001; ER1542-ER1543.

I. Summary Judgment. GIAA filed the three motions for summary judgment at issue—one in each

Protest Action. ER2497-ER2517; ER2519-ER2539; ER2720-ER2738; see also

ER4440-ER4461; ER5826-ER5846; ER5459-ER5479; ER6273-ER6284; ER7014-

ER7025; ER6285-ER6295.

DFS cross-moved for summary judgment only in the Third Protest Action.

ER6296-ER6308; see also ER7156-ER7177; ER7924-ER7934. DFS requested that the Superior Court enter judgment in DFS’s favor on five claims: (1) GIAA violated the automatic stay provision; (2) GIAA’s Contract does not conform to criteria required by § 1203.1(a)(2); (3) GIAA’s RFP method was not authorized by

Guam law; (4) GIAA failed to maintain a complete procurement record as required by 5 GCA § 5429, and failed to certify it; and (5) as a result of its violations of

Guam law and the RFP itself, GIAA failed to comply with the Procurement Law’s mandate of fair and equitable treatment of all proposers. ER6296-ER6308.

The court heard lengthy oral argument on each of the motions. Rep.’s Tr. on

Appeal of CV943-14, Nov. 27, 28, 29 and 30, and Dec. 19, 2017 Hr’gs.

On February 2, 2018, the Superior Court denied GIAA’s three motions for summary judgment, and granted DFS’s motion, finding that DFS was entitled to judgment as a matter of law on each of its claims. ER8646-ER8663; ER8664-

ER8685; ER8723-ER8743; ER8686-ER8722.

Based on its findings, the Superior Court, among other things, voided the

RFP and Contract with Lotte. ER8719-ER8722. However, the Superior Court also ordered “[G]IAA to [abide by] the terms of the current Specialty Retail Concession

Agreement until [G]IAA procures an operator.” Id.

The Superior Court issued a judgment three days later, on February 5, 2018, which provided that the RFP was voided; the Contract was voided and set aside; and denied DFS’s request for costs. ER008753. The Superior Court also issued an order vacating the scheduled trial on the First and Second Protest Actions because, according to the court, “there are no justiciable claims left for the Court to adjudicate.” ER8752. On February 6, 2018, the Superior Court issued an order

“MOOT[ing] all unaddressed motions.” ER8931.

J. DFS’s Rule 59(e) Motion, and GIAA’s Efforts to Circumvent the Superior Court’s Rulings and February 5 Judgment. DFS timely moved pursuant to GRCP 59(e) to alter or amend the decision granting DFS’s motion for summary judgment, the judgment, and the vacatur order. ER8950-ER8967. Among other things, DFS noted that the Superior Court erred in (1) finding that no justiciable claims remained arising from the First and

Second Protest Actions and entering a judgment in the entire case and (2) denying

DFS costs pursuant to GRCP 54(d). Id.

Meanwhile—unbeknownst to the Superior Court, DFS, or the public—

GIAA and Lotte were secretly negotiating in an effort to circumvent the Superior

Court’s rulings. On April 23, 2018, GIAA and Lotte executed a 5-page

“Mediation Term Sheet,” which significantly decreased the amount of money

Lotte was obligated to pay to operate the concession—in direct contravention of the Superior Court’s ruling that GIAA must abide by the existing concession contract until it procures a new operator and that the procurement of any new concession contract must be in complete compliance with the Procurement Law.

ER9584-ER9636; see also ER9576; ER9579-ER9636 ¶¶16-18; ER9692-ER9697

¶¶6-8. Thus, even after all of the evidence of Lotte’s violation of Guam law were made known to GIAA and the Superior Court declared the Contract void, GIAA’s immediate response was to execute a secret deal that unilaterally granted Lotte significant and continuing financial benefit.

On July 16, 2018, the Superior Court granted in part and denied in part

DFS’s Rule 59(e) Motion. ER9862-ER9874. Concurrently, the Superior Court issued an amended decision and order granting DFS’s summary judgment motion in the Third Protest Action. ER9856-ER9859. The Superior Court also issued an amended judgment (“Amended Judgment”). ER9860-ER9861. The Superior

Court retained the same remedies from its original rulings, except that GIAA was no longer required to temporarily abide by the terms of the concession agreement while a new operator is procured. ER9856-ER9859; ER9860-ER9861. Instead, in a separate order, the Superior Court stayed the Amended Judgment “pending any appeal with the Supreme Court of Guam.” ER9875. Further, in its July 16 Order, the Superior Court “declare[d] Protests 1 and 2 to be MOOT.” ER9866-ER9870;

ER9873-ER9874.

GIAA timely appealed on July 23, 2018. SER264-SER268. DFS timely cross-appealed on August 6, 2018. SER269-SER270.

VI. STANDARDS OF REVIEW The parties agree that the Superior Court’s order granting a motion for summary judgment is reviewed de novo. See, e.g., Teleguam-II, 2018 Guam 5 ¶

11. “[D]ue to the de novo nature of review, a grant of summary judgment must be affirmed on appellate review if it is supported by any basis in the record, even if such basis was not included in the trial court’s decision.” Hawaiian Rock Prods.

Corp. v. Ocean Hous., Inc., 2016 Guam 4 ¶ 30.

Likewise, the parties agree that “[t]he interpretation of a statute,” including

Guam’s Procurement Law, and questions of jurisdiction are legal questions

“subject to de novo review.” Data Mgmt. Res., LLC v. Office of Pub.

Accountability, 2013 Guam 27 ¶ 17; see also Guam YTK Corp. v. Port Auth. of

Guam, 2014 Guam 7 ¶ 17; Pacific Rock v. Dep’t of Educ. (“Pacific Rock-II”), 2001

Guam 21 ¶ 13; Town House Dep’t Stores, Inc. v. Dep’t of Educ., 2012 Guam 25 ¶

11.

With respect to the issues presented by DFS’s cross-appeal, a trial court’s dismissal of claims as moot is reviewed de novo. Rapadas v. Benito, 2011 Guam

28 ¶ 13. On the other hand, the denial of costs under GRCP 54 is reviewed for abuse of discretion. See, e.g., Champion Produce, Inc. v. Ruby Robinson Co., Inc.,

342 F.3d 1016, 1020 (9th Cir. 2003).

Finally, “[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Guam R. Civ. P. 61; see, e.g., In re Application of Guerrero, 2005 Guam

1 ¶ 34; Guam Elec. Comm’n v. Responsible Choices for All Adults Coal., 2007

Guam 20 ¶ 103 n.67; Nissan Motor Corp. in Guam v. Sea Star Grp. Inc., 2002

Guam 5 ¶ 9.

VII. SUMMARY OF ARGUMENTS IN RESPONSE TO GIAA’S APPEAL The Court should affirm the Superior Court’s grant of summary judgment to

DFS in the Third Protest Action and its denial of GIAA’s motions for summary judgment.

1. The Superior Court properly exercised subject matter jurisdiction in all three Protest Actions.

a. The complaint in each of the Protest Actions was timely filed within

14 days of the Public Auditor recusing herself, which constituted the

“final administrative decision” for purposes of triggering an action

under § 5480. See 5 GCA § 5481(a).

b. The Superior Court correctly treated the Protest Actions as civil

actions, not a narrow review of an administrative record. See

Teleguam-II, 2018 Guam 5 ¶ 20.

c. Given the broad jurisdictional grant in § 5480, the Superior Court

properly held that DFS did not need to exhaust its allegations in the

Third Protest Action concerning GIAA’s incomplete procurement

record and improper solicitation method, which were pure questions

of law that do not need to be exhausted in any event.

2. The Superior Court correctly adjudicated DFS’s claims based on the procurement record and improper solicitation method, even though DFS’s complaint in the Third Protest Action did not raise these issues, since GRCP 15(b) allows a Superior Court to amend pleadings to conform to proof.

3. The Superior Court properly rejected GIAA’s timeliness argument as to DFS’s Third Protest.

a. DFS filed its Third Protest within 14 days of learning that GIAA had

failed to establish the criteria required by § 1203.1.

b. Even if DFS’s Third Protest were untimely, the Superior Court could

still consider DFS’s claims because (i) GIAA waived any timeliness

argument, (ii) the deadlines applicable to an agency protest are not a

prerequisite for jurisdiction under § 5480, and (iii) DFS raises pure

questions of law that are not subject to the procurement rules

governing timeliness.

c. In any event, DFS’s First Protest was timely and GIAA has not

demonstrated that the Superior Court erred in applying the equitable

tolling doctrine to DFS’s Third Protest.

4. The Superior Court properly granted summary judgment to DFS on its claims in the Third Protest Action.

a. GIAA violated the statutory automatic stay provision. DFS timely

filed its Third Protest before GIAA’s Board approved the Contract,

yet GIAA continued with the proposed award to Lotte anyway.

b. GIAA concedes that it did not adopt the concession criteria required

§ 1203.1(a)(2).

c. Neither the Procurement Law nor GIAA’s Enabling Act authorizes

the request-for-proposals method that GIAA used here.

d. The undisputed evidence establishes, and GIAA effectively concedes,

that its Procurement Record is incomplete and not certified. These

deficiencies were material because they thwarted judicial review of

DFS’s allegations.

e. GIAA does not argue that the Superior Court erred in granting

summary judgment to DFS on its separate claim for violation of the

Procurement Law’s mandate of fair and equitable treatment. GIAA

has waived any assignment of error on this claim.

5. As a remedy for GIAA’s violations of law found in the Third Protest

Action, the Superior Court properly cancelled the RFP and the Contract pursuant to

5 GCA § 5451. Despite GIAA’s arguments, Guam law is clear that the Superior

Court did not need to address GIAA’s “best interests of the territory” defense, since the protest was pre-award. In addition, the Superior Court correctly voided the Contract pursuant to § 5425(g).

6. The Superior Court correctly found that there are genuine issues of material fact that preclude summary judgment for GIAA on the claims raised in the

First and Second Protest Actions.

VIII. ARGUMENTS IN RESPONSE TO GIAA’S APPEAL

A. The Superior Court Properly Exercised Subject Matter Jurisdiction Over DFS’s Protest Actions. GIAA contends that the Superior Court lacked subject matter jurisdiction over any of the Protest Actions because the Public Auditor never issued a “final administrative decision.” Br. at 34. GIAA is wrong.

The Procurement Law provides that “[a]ny action under § 5480 . . . shall be initiated within fourteen (14) days after receipt of a final administrative decision.”

5 GCA § 5481(a) (emphasis added); see Teleguam-II, 2018 Guam 5 ¶ 20.

The “final administrative decision” underlying all three Protest Actions was the Public Auditor’s recusal order. See ER41-ER44; ER1-ER65; ER155-ER157;

ER114-ER139; ER345-ER347; ER318-ER334. Guam law is clear that in the event of the Public Auditor’s recusal or disqualification, a “matter may be taken to the

Superior Court of Guam in accordance with 5 GCA § 5480.” 2 GAR. Div. 4

§ 12116; see also Teleguam-II , 2018 Guam 5 ¶ 23 n.4. Indeed, in urging the

Public Auditor’s recusal in the appeal of DFS’s First Protest, GIAA argued that

DFS would not be prejudiced and could bring its action in the Superior Court.

SER126-SER149.

GIAA attempts to draw a distinction between the Public Auditor’s “recusal” and simply “declining” to hear the appeals—suggesting the latter is not a “final administrative decision” for purposes of § 5481. Br. at 35. But GIAA ignores the

Public Auditor’s express language when she confirmed that her “Dismissal Order was intended as a recusal from the exercise of jurisdiction pursuant to 2 GAR, Div.

4, § 12601 and a notification to all parties of that recusal,” and that “[t]he Public

Auditor . . . for the reasons stated in the Dismissal Order, recused herself from the

Appeal.” ER158-ER160 (emphasis added); see also ER41-ER44; ER155-ER157;

ER345-ER347. There can be no serious dispute that the Public Auditor “recused” herself from hearing DFS’s appeals, which amounts to a “final administrative decision,” allowing DFS to proceed directly to the Superior Court.

GIAA cites no authority supporting its suggestion that the Public Auditor’s recusal here was insufficient or improper. On the contrary, 2 GAR Div. 4 § 12116 provides that “[t]he Public Auditor may recuse herself or himself at any time,” and, as the Superior Court concluded, this section “does not foreclose recusals due to appearances of impropriety.” ER748-ER750.

In reality, GIAA was playing a jurisdictional shell game. It argued to the

Public Auditor that she could not decide DFS’s cases, and then having lost in the

Superior Court, GIAA said the opposite and contended that the Public Auditor

“retains exclusive jurisdiction,” and that the trial court had no authority to decide these cases in the first instance. SER126-SER149; SER111-SER120; Br. at 35.

This stratagem deserves short shrift. The Public Auditor’s recusal orders were

“final administrative decisions” under settled Guam law, so the Superior Court properly exercised jurisdiction over DFS’s Protest Actions.

B. The Superior Court Correctly Adjudicated the Protest Actions as Civil Actions, Not as a Narrow, Deferential Review of the Administrative Record. GIAA accuses the trial court of “dramatically reshap[ing] Guam’s procurement process” by adjudicating DFS’s three protest actions as civil actions,

rather than rubber-stamping GIAA’s administrative decisions through an

“extremely deferential” review only on the self-selected GIAA administrative record. Br. at 2, 30-32, 90. But GIAA fails to note that this Court recently rejected precisely this argument in Teleguam-II, which GIAA did not cite in the relevant section of its Opening Brief.

The appeal in Teleguam-II arose “out of a lengthy government procurement dispute” that was resolved on summary judgment. 2018 Guam 5 ¶ 1. Among other things, this Court in Teleguam-II held that in adjudicating such claims,

(i) “[t]he Superior Court is entitled to examine ‘the whole record’ . . . , not just that which [the agency] or the Public Auditor unilaterally chooses to submit”; (ii) the parties are entitled to civil discovery; (iii) “the law and rules applicable to the

Superior Court, including the Guam Rules of Civil Procedure, govern ‘appeals’ from Public Auditor decisions”; (iv) “the Superior Court must be enabled to conduct ‘a thorough, probing, in-depth review’”; and (v) any “[l]imitations on what the Superior Court may consider would remove a safeguard in maintaining a procurement system of quality and integrity.” Id. ¶¶ 27, 31, 33. This Court also held that the Superior Court reviews legal questions de novo, and should give deference only to the Public Auditor’s factual findings—although, here, there are no such factual findings because Public Auditor recused herself. Id. ¶¶ 32-33.

GIAA’s authority-free assertion that the Superior Court must give deference to GIAA’s factual findings (Br. at 30-32) is contrary to the express language of the

Procurement Law, which gives deference only to the Public Auditor’s factual findings. See 5 GCA §§ 5703, 5704. It would be illogical and incongruous to allow the Public Auditor to conduct a de novo review of GIAA’s factual findings but then deprive the Superior Court of that same authority when, as here, the

Public Auditor is recused. This is particularly true where, as here, DFS has alleged and shown that there is evidence of collusion between the GIAA and Lotte.

GIAA relies heavily on GMHA v. Civil Service Commission (“Chaco”),

2015 Guam 18, to support its argument for a “deferential standard of review” that is limited to the agency’s administrative record prepared by the agency. Br. 30-32.

But Chaco—decided three years before Teleguam-II—is not even a procurement case; it has no application to the scope of review in a § 5480 action. This significant because, as the Court has explained, “[g]overnment procurement law is a unique statutory scheme.” Teleguam-II, 2018 Guam 5 ¶ 12.

C. GIAA’s Exhaustion Arguments are Baseless. GIAA argues that the Superior Court erred by granting summary judgment to DFS on claims that were not raised in DFS’s protests to GIAA. Br. 35-40.

GIAA focuses on DFS’s “Success Fee” claim raised in the First Protest Action (id. at 35-36, 39), even though DFS did not seek or obtain summary judgment on that

claim. However, GIAA’s argument fails whether applied to the “Success Fee” claim or DFS’s claims concerning defects in the solicitation method and procurement record—claims on which the Superior Court did properly grant summary judgment to DFS in the Third Protest Action.4

1. This Court Can Affirm Summary Judgment to DFS in the Third Protest Action Based Solely on DFS’s § 1203.1(a)(2) Claim, Which DFS Indisputably Raised in the Third Protest. As a preliminary matter, the Superior Court correctly granted summary judgment to DFS in the Third Protest Action based on its separate claim under

§ 1203.1(a)(2), that GIAA failed to promulgate and adopt the requisite criteria governing airport concession agreements (discussed in Section VIII.G.2 below).

There is no dispute that DFS raised this § 1203.1(a)(2) claim in the Third Protest.

To the extent this Court affirms the Superior Court with respect to that claim, it can affirm summary judgment to DFS in the Third Protest Action on that ground alone, and it need not reach GIAA’s exhaustion argument regarding the solicitation method or procurement record.

4 GIAA’s argument regarding DFS’s success fee claim is immaterial to whether the Superior Court properly granted summary judgment in favor of DFS in the Third Protest Action. Nonetheless, the Court should reject GIAA’s arguments on this claim for the same reasons as below, except the arguments in Section VIII.C.1, which are specific to the Third Protest Action.

2. The Superior Court Properly Exercised its Broad Jurisdiction Under § 5480. With § 5480, the Legislature granted jurisdiction to Guam’s courts “to determine whether a solicitation or award of a contract is in accordance with the statutes, regulations, and the terms and conditions of the solicitation.” This broad grant of jurisdiction extends to claims that were not raised and remedies that were not sought before the agency, including “actions at law or in equity, and whether the actions are for monetary damages or for declaratory, or other equitable relief.”

Indeed, Guam’s Procurement Law is unique in that it authorizes broad judicial review even of claims and remedies that could not have been sought before the agency—since a bidder plainly would not be seeking “declaratory, or other equitable relief” in a protest before the agency itself, and because civil discovery could reveal additional infirmities or violations beyond those raised in the underlying protest.

The comprehensive grant of jurisdiction in § 5480 allowed the Superior

Court to consider DFS’s claims concerning GIAA’s use of an unlawful solicitation method and GIAA’s incomplete and uncertified procurement record, even though these specific issues were not included in DFS’s protests. This is precisely how this Court has applied § 5480 in two recent decisions.

This Court in Fleet Services, Inc. v. Dep’t of Admin., 2006 Guam 6, raised and adjudicated sua sponte an entirely separate merits issue that was never raised

in the underlying protest—namely, whether the solicitation method complied with the Procurement Law. Id. at ¶¶ 8, 19. The Court went on to hold that the solicitation method was improper and that, as a result, “the procurement violates

Guam law and must be set aside.” Id. at ¶ 18. Thus, this Court in Fleet Services raised, reviewed, and set aside a procurement under § 5480 based on the solicitation method violating the Procurement Law, even though this claim was never asserted in a protest to the agency.

More recently in Teleguam-II, this Court similarly affirmed an order invalidating a procurement under § 5480 based on a claim never raised during the administrative proceedings—a claim that the underlying procurement record was incomplete. 2018 Guam 5 ¶¶ 7, 23-42.

As a policy matter, the broad jurisdictional grant of § 5480 makes perfect sense. If Guam courts lacked original jurisdiction to hear specific arguments and issues simply because they were not included in a protest, agency misconduct— especially misconduct that came to light only after the lawsuit was initiated (for example, through discovery)—effectively would escape judicial review.

If a protester were forced to submit a new protest for each new ground or new argument as they discovered it, the process would grind to a halt because

Guam law prohibits the agency or the Public Auditor from proceeding (and thus issuing a decision) on any protest while a Superior Court action is pending. 2

GAR, Div. 4 § 12103(b); 2 GAR, Div. 4 § 9101(i). These protests necessarily would sit unresolved until the initial litigation was concluded only to start the process anew (and to the extent the successive protests were not resolved at once, then multiple follow-on lawsuits would be necessary to resolve them). The

Superior Court thus would be confronted with piecemeal, incomplete, and virtually endless litigation, and the administrative decision would remain in a state of uncertainty for potentially many years. The law does not require this, and this scenario cannot be what the Legislature or this Court intended.

GIAA advances a crabbed view of § 5480—under which courts are stripped of jurisdiction to consider arguments that were not presented to the agency. Br. at

35-40. This construction finds no support in the text of § 5480 or this Court’s case law interpreting it.

GIAA does not attempt to distinguish Teleguam-II on the issue of exhaustion. With respect to Fleet Services, GIAA merely points out that the opinion did not expressly “address the exhaustion issue.” Br. at 36. But that reinforces what the Superior Court did here—since it confirms the authority of

Guam’s judiciary under § 5480 to sua sponte declare that an agency’s solicitation method was invalid, even if that argument was not raised before the agency.

GIAA suggests Fleet Services’s broad conception of § 5480 jurisdiction somehow infringes on the agency’s sovereign immunity. Br. at 37. But GIAA

overlooks that this Court has already found that “sovereign immunity is not implicated in this case” due to the “sue or be sued” clause in GIAA’s enabling legislation, which has been deemed “sufficient to waive sovereign immunity.”

DFS-I, 2014 Guam 12 ¶ 23 n.3. Regardless, § 5480 waives sovereign immunity for an action—like this one—between a procuring agency and a proposer involving issues of “whether a solicitation or award of a contract is in accordance with the statutes, regulations, and the terms and conditions of the solicitation.” 5 GCA

§ 5480; Town House, 2012 Guam 25 ¶¶ 31-32. Nothing in § 5480 states or implies that this waiver is limited to issues first raised before the agency or Public

Auditor.5

GIAA also urges that Fleet Services is “fundamentally inconsistent with the purposes of the exhaustion requirement.” Br. 37. But once again, GIAA offers no support for this argument in the text of § 5480 or elsewhere in the Procurement

Law.6 Further, GIAA is conflating a failure to exhaust any administrative remedies—that is, a proposer attempting to bypass the agency entirely by not

5 Newby v. Gov’t of Guam, 2010 Guam 4 (cited on page 37 of GIAA’s Opening Brief) is not applicable here, because that case addressed a waiver of sovereign immunity under Guam’s Government Claims Act. Id., ¶31.

6 GIAA cites a number of cases discussing the general policy underlying the doctrine of exhaustion of administrative remedies. Br. at 37-38. These cases are inapposite here in a case arising under § 5480 challenging the lawfulness of a procurement.

raising any challenges to the solicitation or award at the administrative level—with the circumstances here, where a bidder raised three separate protests before the agency, but did not include certain of its allegations raised before the Superior

Court in those protests.

The Court recognized this very distinction in Teleguam-II. There, a proposer did not challenge in the administrative proceeding all parts of a multi-part bid solicitation process—with each part involving a request for a separate and distinct bid—so this Court found that the proposer did not properly invoke the

Superior Court’s jurisdiction over the entirety of solicitation process. 2018 Guam

5 ¶¶ 19-22. By contrast, the Court upheld the Superior Court’s order vacating the part of the solicitation that was challenged in the administrative proceeding, and as noted above, the Court did so based on a ground not previously raised during the administrative proceeding. Teleguam-II, 2018 Guam 5 ¶¶ 19-42.

3. GIAA Relies on Inapposite Case Law. GIAA relies heavily on this Court’s decisions in Pacific Rock-II and DFS-I, but neither case advances GIAA’s exhaustion argument. In particular, neither case addresses the scope of a trial court’s jurisdiction under § 5480 to address issues not raised before the agency.

Pacific Rock-II involved actions for breach of contract, not a challenge to a procurement—which is a key distinction given the unique nature of jurisdiction

under § 5480. 2001 Guam 21 ¶¶ 21-33. According to GIAA, Pacific Rock-II

“affirm[s] that the protest to the agency is integral to the ‘dual administrative review’ required by the Procurement Law.” Br. at 38. But this Court never made such a finding. In fact, GIAA does not cite a single decision that would preclude a party to a procurement action under § 5480 from raising an additional ground for why a challenged procurement is unlawful, once the Superior Court’s jurisdiction is properly invoked, as it was here.

GIAA also asserts that in DFS-I—GIAA’s appeal of narrow issues in the

Initial Action—this Court “affirmed that no court has subject matter jurisdiction to hear a claim made by a protester before exhausting its administrative remedies.”

Br. at 33, 35. But again, this Court made no such ruling. On the contrary, the exhaustion issue was not before the Court in DFS-I, because DFS did not appeal the dismissal of its complaint in the Initial Action for lack of subject matter jurisdiction and GIAA’s appeal was limited to the denial of its reconsideration motion and sanctions motion.

In any event, the jurisdictional issue in the Initial Action—addressed only by the trial court, and not part of the appeal to this Court—was very different from the one GIAA is now attempting to raise in this appeal. DFS, in the Initial Action, had simultaneously filed its complaint in the Superior Court and its appeal before the

Public Auditor. ER45-ER65; ER4172-ER4188. The trial court found that DFS

should have pursued its appeal to the Public Auditor before bringing its action under § 5480 in the Superior Court. ER4136-ER4143; ER4156-ER4163; ER4164-

ER4171.

But the Superior Court in the Initial Action did not find or even suggest that once the proceedings before the Public Auditor were completed, DFS would be precluded from raising new arguments in support of an existing claim that the RFP and award to Lotte were unlawful.7 On the contrary, Fleet Services and Teleguam-

II plainly allowed DFS to do so with respect to its claims based on the improper solicitation method and invalid procurement record.

4. In Any Event, DFS Was Exempt from Exhausting Pure Questions of Law. This Court has explained that “[c]ertain judicially recognized exceptions . . . apply to the doctrine of administrative exhaustion that can confer jurisdiction on a court despite a party’s failure to exhaust.” Barrett-Anderson v. Camacho, 2015

Guam 20 ¶ 32. One such exception is a pure question of law, such as the interpretation of a statute. Lester H. by Octavia P. v. Gilhool, 916 F.2d 865, 869-

70 (3d Cir. 1990); K.S. v. R.I. Bd. of Educ., 44 F. Supp. 3d 193, 197 (D.R.I. 2014);

7 The other cases GIAA cites in its brief are equally inapposite here (Br. at 35- 40), because they have no bearing on what arguments can be raised before the Superior Court once jurisdiction has been properly invoked under § 5480.

Medcenter One, Inc. v. N. Dakota State Bd. of Pharm., 561 N.W.2d 634, 638 (N.D.

1997).

Here, DFS’s solicitation method and procurement record claims involve pure questions of law. As such, these claims do not raise matters that implicate administrative discretion or fact-finding.

D. The Superior Court Properly Granted Summary Judgment to DFS on its Solicitation Method and Procurement Record Claims Even Though These Claims Were Not Included in DFS’s Complaint. GIAA next argues that the Superior Court erred in granting summary judgment to DFS in the Third Protest Action with respect to DFS’s claims concerning the solicitation method and procurement record, since DFS did not include those claims in its complaint. Br. at 68-69. Here, too, GIAA is wrong.

First, as explained in Section VIII.C.1., supra, this Court can affirm the grant of summary judgment to DFS in its Third Protect Action solely on the basis that GIAA failed to promulgate and adopt the criteria required by § 1203.1(a)(2).

To the extent this Court agrees with the Superior Court on the § 1203.1(a)(2) claim

(see infra Section VIII.G.2), it need not even reach this argument.

In any event, courts may exercise their discretion to conform the pleadings to the evidence submitted on a motion for summary judgment, especially where, as here, there is no prejudice to GIAA in doing so. GRCP 15(b) provides that courts shall freely conform pleadings to the evidence “when the presentation of the merits

of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits.” See also Yoshida v. Guam

Transport & Warehouse, Inc., 2013 Guam 5 ¶¶ 35-36.

Although the text of Rule 15(b) refers to a “trial,” the analogous federal rule has been interpreted to allow summary judgment on issues not previously raised in the pleadings. Cruz v. Coach Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000); Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1279-80 (10th Cir. 1998);

Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1030 (6th Cir. 1992).

Here, GIAA does not dispute that “the presentation of the merits of the action” were served by considering these arguments at the summary judgment phase. And GIAA does not argue that it was prejudiced by the Superior Court’s consideration of this evidence and these arguments on summary judgment. Thus,

GIAA has waived any such objection under GRCP 15(b).

Even if GIAA’s objection were not waived, GIAA cannot possibly show prejudice, since it had a full and fair opportunity to respond in its briefing and during oral argument to DFS’s claims concerning the solicitation method and procurement record. See ER6296-ER6308; ER7156-ER7177; ER7924-ER7934;

ER2720-ER2738; ER5459-ER5479; ER6285-ER6295; Rep.’s Tr. on Appeal of

CV943-14, Nov. 30 and Dec. 19, 2017 Hr’gs. At no time has GIAA claimed,

much less demonstrated, that it was somehow impaired in its defense because these grounds were not asserted in the complaint.

GIAA’s reliance on Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir.

2000) is misplaced, because it did not discuss FRCP 15(b) and, in that case, unlike here, there was a specific identifiable prejudice to the defendant. The court in

Coleman found that the proceedings would be unduly delayed because discovery would likely have to be reopened to allow the defendant to prepare its defense to the plaintiff’s new, previously unpled theory. Id. at 1295. There is no such discovery issue here; GIAA does not claim it was deprived of discovery relating to the solicitation method or procurement record issues and, in fact, the evidence related to these issues resided solely with GIAA. In addition, GIAA’s other cited cases—Spencer v. Connecticut, 560 F. Supp. 2d 153 (D. Conn 2008) and Ass’n of

Cleveland Fire Fighters v. City of Cleveland, 2010 WL 11488998, at *5 (Ohio

Com. Pl. 2010)—do not address or discuss the applicability of FRCP 15(b) to a summary judgment motion, so they are of no moment here.

E. The Superior Court Correctly Rejected GIAA’s Timeliness Arguments as to DFS’s Third Protest. GIAA contends that the Superior Court “misapplied” the Procurement Law’s timeliness requirement in granting summary judgment to DFS in the Third Protest

Action. Br. at 40-61.

As a threshold matter, GIAA waived any timeliness defense when it chose to consider the merits of DFS’s Third Protest. See Howard v. F.A.A., 17 F.3d 1213,

1217 (9th Cir. 1994); Hammett v. Cofield, 681 F.3d 945, 947-48 (8th Cir. 2012).

In any event, as explained below, DFS’s Third Protest was timely since DFS filed it within 14 days of becoming aggrieved and learning the facts giving rise to the protest. And in the alternative, GIAA has not demonstrated that the Superior Court erred in applying the equitable tolling doctrine to DFS’s Third Protest.

1. DFS Timely Filed its Third Protest Within 14 Days of Learning the Facts Giving Rise to the Protest. The Procurement Law provides that a “protest shall be submitted in writing within fourteen (14) days after such aggrieved person knows or should know of the facts giving rise thereto.” 5 GCA § 5425(a).8

Here, on June 3, 2013, GIAA responded to DFS’s Sunshine Act Request and informed DFS of its position—which contradicted the one it had been holding since roughly 2003—that GIAA had never adopted the criteria required by

§ 1203.1(a)(2). ER6766-ER6767. DFS filed the Third Protest just four days later, on June 7, 2013, raising the § 1203.1(a)(2) claim. ER2680-ER2683. DFS’s Third

Protest was thus timely.

8 GIAA argues that DFS had an obligation to protest “as soon as it had notice there was a potential” violation. Br. at 56 (emphasis added). This is a misreading of § 5425(a), which does not reference a “potential” violation, but rather an “aggrieved” (not potentially aggrieved) person.

GIAA insists that DFS should have known before June 3, 2013, that GIAA had not adopted the criteria required by § 1203.1(a)(2). Br. at 52-57. But as explained below, it is undisputed that GIAA has taken wildly inconsistent positions as to whether it formally adopted the required criteria such that neither DFS nor any other member of the public could have known GIAA’s position:

 In April 1998, GIAA represented to the Legislature that “[i]n 1995, the Authority finalized a non-airline lease and concession policy.” ER6409.

 A few years later, GIAA changed its position in connection with its issuance of a 2001 request for proposal for the specialty retail concession—stating “based on information and belief” that it did not believe that the required criteria were finalized. ER2787.

 Then, on June 11, 2003, GIAA performed another about face when it represented it had in fact adopted the required criteria. ER2858-ER2864 (repeatedly relying on the “Non-Airline Lease and Concession Policies”).9

 Several years after that, on June 26, 2007, GIAA again stated to DFS that the required criteria had been finalized after the public hearing in 1995. ER6431-ER6432.

Thus, it is undisputed that GIAA represented on multiple occasions that it had adopted the required criteria. That there was no public record of the policies being adopted is inapposite, because the criteria were not required to be published to be effective.

9 Contrary to GIAA’s argument (Br. at 56), DFS never conceded that the 1995 Polices were not adopted in its response to GIAA’s June 11, 2003 letter. DFS simply observed that GIAA’s position in the June 11, 2003 letter was in conflict with GIAA’s previous representations on the subject. ER2865-ER2872.

In fact, the RFP’s draft contract at issue expressly references “the

Authority’s Non-Airline and Concession Lease Policies.” ER3095 (Art. 6, §6.5).

Not until GIAA’s June 3, 2013 response to the Sunshine Act Request did DFS learn that GIAA had changed its position (once again) regarding whether § 1203.1 criteria had been adopted, now flip-flopping back to the position that no such policies were adopted or effective.

Notably, GIAA’s internal position regarding whether the criteria were adopted or otherwise official policy has changed significantly over time. In 2012, just months before GIAA promulgated the RFP at issue, internal GIAA emails show that its management continued to regard the 1995 Concession Policies as having been formally adopted. ER5568-ER5569, ER5644; ER5718. Then, after the RFP was issued but before any proposals had been submitted, GIAA’s counsel observed that she did not know “if this policy was ever approved by the Board” because “[t]he policy says that it is being adopted pursuant to the [Administrative

Adjudication Law] but based upon information provided that process was not completed because the final Policy was not submitted to the Legislature.”

ER5720; ER5724.

Two months later, Jean Arriola, GIAA’s Airport Services Manager, emailed

GIAA’s counsel noting “we need to update our non-airline lease and concession policy.” ER5800. And then, on May 29, 2013, just five days before GIAA’s June

3 Response to DFS’s Sunshine Act request, a GIAA employee sent an email circulating the 1995 Policies to other GIAA employees as if they were in effect.

ER5486-ER5560.

In short, until GIAA’s Sunshine Act response, GIAA’s own employees genuinely believed that the 1995 Policies were official policy. At least through the end of May 2013 (even after DFS’s May 24 Sunshine Act request), GIAA itself was not sure what position it was going to take regarding whether the 1995

Policies were adopted. It is therefore highly disingenuous for GIAA to assert that

DFS should have known that no criteria under § 1203.1 were ever adopted. No reasonable fact-finder could so conclude, based on the undisputed facts.

Consequently, DFS became “aggrieved,” at the earliest, on April 12, 2013, when GIAA’s Board approved management’s recommendation “that Proposer A

[later disclosed as Lotte] be given the first opportunity to negotiate the specialty retail concession agreement.” ER7908-ER7915. DFS investigated this proposed award, including through use of Sunshine Act requests, the first of which was submitted a week later. ER007256-ER7264 ¶8; ER6764-ER6765. It was not until

June 3, 2013—when DFS was both aggrieved and knew from the response to the

Sunshine Act request that GIAA did not have any concession lease policies in place—that the fourteen-day period began to run. See ER6766-ER6767. As a matter of law, DFS’s Third Protest was timely.

2. DFS’s Timely First Protest Equitably Tolled the Time for Filing DFS’s Third Protest. DFS’s First Protest was timely. See infra Section VIII.I. Thus, in the alternative, DFS’s timely first protest equitably tolled the timing for DFS’s subsequent protests, and GIAA has not established that the Superior Court erred in so holding.

As noted above, a timely, pre-award protest results in an automatic stay of the underlying procurement pursuant to 5 GCA § 5425(g). DFS’s First Protest was filed on April 23, 2013—making it pre-award, since this was nearly a month before the Contract was executed. At that point, GIAA should have (but did not) stay the solicitation. And because the automatic stay should have been imposed, the

Superior Court held that the deadline for DFS to file any subsequent protests was equitably tolled. ER8694.

GIAA contends the trial court erred by applying the equitable tolling doctrine here, because, in GIAA’s view, the 14-day period in § 5425(g) is jurisdictional and cannot be tolled. Br. at 58-60. But GIAA cites no relevant authority for this proposition. On the contrary, GIAA itself addressed the merits of

DFS’s First Protest instead of simply denying it for lack of jurisdiction (ER2634-

ER2670)—demonstrating that even GIAA did not consider the 14-day period jurisdictional.

Contrary to GIAA’s assertions (Br. at 58), nothing in Pacific Rock-II precludes the application of an equitable exception to the 14-day period. Pacific

Rock-II applies to a statute of limitations for bringing judicial actions against the government; it is rooted in sovereign immunity principles, which this Court has already found GIAA does not enjoy here. 2001 Guam 21 ¶ 18; DFS-I, 2014 Guam

12 ¶ 23 n.3. Likewise, Guam Housing and Urban Renewal Auth. v. Dongbu Ins.

Co., 2001 Guam 24, does not hold that the equitable tolling doctrine cannot be applied to the 14-day period to file a protest.

F. Even if DFS’s Third Protest Were Untimely, the Superior Court Still Properly Considered DFS’s Claim Concerning GIAA’s Failure to Adopt Criteria Required by § 1203.1(a)(2). Even if DFS’s Third Protest was untimely, filing a timely protest is not a prerequisite to the Superior Court’s jurisdiction for this claim. As discussed above, the Superior Court has a broad jurisdictional grant in § 5480. See supra Section

VIII.B and VIII.C. GIAA does not cite any authority in support of its argument that an untimely protest at the administrative level deprives courts of jurisdiction to even consider § 5480 claims. Br. at 41.10

The only timeliness limitation on courts’ jurisdiction under § 5480 is that the complaint must be “initiated within fourteen (14) days after receipt of a final

10 Contrary to GIAA’s assertion, the Court in DFS-I never made a proclamation that “[a] party that fails to comply with the Procurement Law’s administrative procedures cannot prosecute its claims in Court.” Br. at 40.

administrative decision.” 5 GCA § 5481(a). Here, as explained above, DFS’s complaint was filed within 14 days of its receipt of a final administrative decision from the Public Auditor. ER41-ER44; ER1-ER65; ER155-ER157; ER114-ER139;

ER345-ER347; ER318-ER334. Section 5425(a) provides that the Public Auditor’s decision is final “unless a person adversely affected by the decision commences an action in the Superior Court in accordance with Subsection (a) of § 5480 of this

Chapter.”

Nothing in § 5425(a), § 5480, § 5481, or elsewhere in the Procurement Law limits a court’s jurisdiction to actions involving protests that were timely filed before the agency.11 To the contrary, in Fleet Services, this Court cancelled a solicitation despite a finding below that one of the protests was not timely filed, and it did so on a ground not raised in the untimely protest. 2006 Guam 6 ¶¶ 8, 18,

35, 37. None of GIAA’s cited authorities address the issue of whether jurisdiction to review a challenge to a procurement under § 5480 is limited by the timeliness of a protest to the agency.

11 When the Legislature intended to limit relief to timely protests, it did so expressly. For instance, the automatic stay provision applies only to “a timely protest.” 5 GCA § 5425(g). That the Legislature did not limit § 5425(a) or § 5480 to “timely” protests confirms the fundamental defect in GIAA’s position.

Alternatively, even if filing a timely protest were a prerequisite to the

Superior Court’s jurisdiction, DFS’s claim concerning § 1203.1(a)(2) raises a pure question of law and thus, the Superior Court still properly exercised jurisdiction over the Third Protest Action because, as with DFS’s solicitation method and procurement record claims, this claim is exempted from any requirement that administrative remedies be exhausted before judicial review. See supra Section

VIII.C.4. Thus, DFS may still proceed with its claim under § 1203.1(a)(2).12

G. The Superior Court Correctly Granted DFS’s Motion for Summary Judgment, and Denied GIAA’s Motion, in the Third Protest Action. DFS was entitled to summary judgment on its various claims in the Third

Protest Action on five independent grounds: (1) GIAA’s violation of the automatic stay; (2) GIAA’s failure to promulgate and adopt § 1203.1(a)(2) criteria; (3)

GIAA’s use of an unlawful solicitation method; (4) GIAA’s failure to maintain and certify a procurement record; and (5) GIAA’s violation of the Procurement Law’s mandate of fair and equal treatment.

12 To the extent the Court rejects DFS’s position that its § 1203.1(a)(2) claim was timely or that its solicitation method and procurement record claims did not need to be exhausted, genuine issues of material fact exist as to DFS’s other arguments why the Superior Court should still consider those claims, such as whether it would have been futile to submit a timely protest to GIAA, whose management, board, and counsel were actively involved in the misconduct. Barrett-Anderson, 2015 Guam 20 ¶ 32.

1. The Superior Court Properly Found that GIAA Violated the Automatic Stay. The Procurement Law mandates that when a timely protest—like DFS’s

Third Protest—is filed, the agency “shall not proceed further with the solicitation or with the award of the contract prior to final resolution of such protest, and any such further action is void . . . .” 5 GCA § 5425(g) (emphases added). Here, as the

Superior Court correctly held, GIAA violated this automatic stay provision by moving forward with the award to Lotte even after DFS lodged its protests and before a final resolution (meaning, completion of all protest appeals). ER8692-

ER8695.

DFS lodged its Third Protest on June 7, 2013. At that point, GIAA’s Board had not yet approved the Contract with Lotte, which did not occur until June 11,

2013. ER2680-ER2683; ER6784-ER6785. And “until the actual award is granted, the solicitation, by definition, is still in the pre-award stage.” Guam Imaging

Consultants, Inc. v. Guam Mem’l Hosp. Auth., 2004 Guam 15 ¶ 37. Yet despite

DFS’s timely, pre-award Third Protest, GIAA continued with its unlawful award to

Lotte by, among other things, installing Lotte as the specialty retail concessionaire, in violation of the automatic stay provision. ER6066-ER6068; ER6086-ER6087.

GIAA argues that the Superior Court erred by granting summary judgment to DFS on this claim because DFS did not raise it in its motion. Br. at 66-67. It is

undisputed, however, that DFS moved for summary judgment on its automatic stay claim. ER6298; ER6300-ER6302.

To the extent that GIAA claims error because the Superior Court granted summary judgment on this claim based on a different rationale than the one asserted by DFS in its motion, there is no authority for this position and GIAA cites none. Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010), cited by

GIAA, involved the length of notice a court must provide to the parties when the court sua sponte enters summary judgment. Here, unlike Norse, GIAA admittedly had ample notice, and ample opportunity to oppose DFS’s automatic stay claim.

Moreover, all of the underlying facts and briefing on the legal issues supporting the

Superior Court’s grant of summary judgment were part of the record. See

ER2497-ER2517; ER4440-ER4461; ER6273-ER6284. If appellate courts can affirm summary judgment “on any basis in the record,” see Hawaiian Rock

Products Corp. v. Ocean Housing, Inc., 2016 Guam 4 ¶ 31, there can be no question that trial courts may grant a party’s motion for summary judgment on a claim, even if the court’s rationale differed from the rationale advanced by the party.

In addition, GIAA argues that DFS is not entitled to the remedy in § 5425(g) because DFS should have done more—apparently in addition to the filing of the

Initial Action that GIAA opposed—to prevent GIAA from taking further action on

the RFP. Br. at 87-91. But as this Court has held, § 5425(a)’s automatic stay is independent of any civil remedies a proposer may have, and a proposer is not required to move for a preliminary injunction to preserve the automatic stay.

Teleguam Holdings LLC v. Guam (“Teleguam-I”), 2015 Guam 13 ¶¶ 35, 36.

GIAA also argues that the Superior Court should have found the “automatic stay” remedy is not available because GIAA permitted Lotte to make capital improvements and operate the concession. Br. at 85-87. GIAA’s position is a non- starter—GIAA, of course, cannot overcome a violation of the automatic stay by compounding it, proceeding further with the award with full knowledge of DFS’s multiple entreaties to impose the stay. SER45-SER49. The cases GIAA cites stand for the unremarkable proposition that a procurement lawsuit is moot when the underlying procurement is either completed or on the verge of being completed. Br. at 86. Here, unlike those cases, there is four and one-half years remaining on the Contract, the Contract is not substantially performed, and voiding now pursuant to § 5425(g) provides DFS with meaningful and effectual relief.

GIAA’s related argument that the length of the current judicial proceedings somehow justifies GIAA’s violation of the law (Br. at 80-92) is another non- starter. The length of the current proceeding—which GIAA for years attempted to delay (see supra Section V.H)—is immaterial to the analysis (and again, would give perverse incentives to the agency to cover up its misconduct).

GIAA has not asserted—and has thus waived—any other claim of error on appeal with respect to the Superior Court’s grant of summary judgment to DFS on its automatic stay claim. Guam Greyhound, Inc. v. Brizill, 2008 Guam 13 ¶ 7 n.3;

Ukau v. Wang, 2016 Guam 26 ¶¶ 53-55. To the extent GIAA attempts to resurrect additional arguments in its reply brief (namely, those GIAA asserted in the briefing before the Superior Court), the Court should reject them as waived.13

2. The Superior Court Correctly Found that GIAA Violated § 1203.1(a)(2) by Failing to Promulgate and Adopt the Requisite Criteria for Airport Concessions. As the Superior Court correctly found, it is undisputed that GIAA failed to adopt the criteria governing airport concessions, as required by its Enabling Act.

ER8695-ER8698.

“Under Guam law, statutory interpretation always begins with the language of the statute.” Data Mgmt., 2013 Guam 27 ¶ 17. Section 1203(f) of GIAA’s

Enabling Act (Title 12, Chapter 1 of the GCA) requires that GIAA’s concession agreements must be “in conformity with the provisions of § 1203.1 of this Title.”

In turn, § 1203.1(a) provides, in relevant part, that “[a]ny agreement between

[GIAA] and any other party concerning the operation of a concession . . . at

[GIAA] shall conform to . . . (2) criteria established for the operation of a

13 DFS objects to GIAA asserting additional claims of error in its reply brief or response to DFS’s cross appeal. To the extent GIAA attempts to do so, DFS reserves the right to respond in subsequent briefing.

concession . . . at [GIAA], which criteria shall be reviewed at a public hearing held within ninety (90) days of the effective date of this Section, and held in accordance with the Administrative Adjudication Law.” (Emphasis added.)

GIAA does not dispute on appeal that the criteria are mandatory and admits that it never adopted the required criteria. Br. at 8-9. The Contract therefore cannot comply with those criteria. In its Opening Brief, GIAA does not even address the merits of DFS’s § 1203.1(a)(2) claim. Accordingly, because GIAA did not comply with § 1203.1(a)(2), GIAA lacked authority to enter into the Contract, as the Superior Court correctly held.

3. The Superior Court Correctly Found that GIAA’s Solicitation Method Was Unlawful. The Superior Court also properly granted summary judgment in DFS’s Third

Protest Action on the ground that GIAA’s solicitation method for the specialty retail concession was contrary to Guam law. ER8701-ER8713.

Under the Procurement Law, “all territorial contracts shall be awarded by competitive sealed bidding, pursuant to § 5211 of [the Procurement Law],” unless specifically excepted. 5 GCA § 5210; see Fleet Services, 2006 Guam 6 ¶ 15.

Here, it is undisputed that GIAA did not use a “competitive sealed bidding” process for the procurement of an airport concession—rather, GIAA used a request-for-proposal process.

GIAA contends that its concession was exempted from the competitive sealed bidding requirement because of 12 GCA § 1203.1(a)(1), which states that

GIAA’s concession agreements shall be entered “only after a competitive proposal procedure, according to the General Services Administration rules and regulations.” Br. at 69-76. The Superior Court properly rejected GIAA’s various arguments on this score, which are contrary to the plain text of the relevant statutes and well-established canons of statutory interpretation.

a. The Request-For-Proposal Process GIAA Used Was not Authorized Under Either 12 GCA § 1203.1(a)(1) or the Procurement Law. As just noted, the default rule is that territorial contracts must be awarded by

“competitive sealed bidding” (5 GCA § 5210), and GIAA’s concession agreements may be awarded only by “a competitive proposal procedure, according to the

General Services Administration [“GSA”] rules and regulations.” 12 GCA

§ 1203.1(a)(1). GIAA contends that the phrase “competitive proposal procedure” expressly authorizes a departure from the default rule of competitive sealed bidding—namely, the request-for-proposal process that GIAA employed here. Br. at 69-71. It does not.

In examining statutory text, the court’s task is to determine whether the text is “plain and unambiguous.” Aguon v. Gutierrez, 2002 Guam 14 ¶ 9. “The plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. But “the plain language of a statute must be the starting point.” In re I Mina'Trentai Dos Na Liheslaturan Guahan, 2014 Guam

24 ¶ 12.

Here, GIAA impermissibly ignores the requirement in § 1203.1(a)(1) that its solicitation method “shall” comply with GSA’s rules and regulations. The phrase

“competitive proposal procedure” cannot be read in isolation. See Aguon, 2002

Guam 14 ¶ 9. Critically, the Legislature narrowed the phrase—which, standing alone, does not refer to any specific solicitation method14—by making clear that

GIAA’s “competitive proposal procedure” must be done “according to the General

Services Administration rules and regulations.” 12 GCA § 1203.1(a)(1). With that clarification, the only reasonable construction of “competitive proposal procedure” is that it refers to Guam’s default rule of competitive sealed bidding (5 GCA

§ 5210), because the GSA rules and regulations do not even authorize a request- for-proposal method for concession agreements.15

14 The statute does not contain a definition for “competitive proposal procedure” or for “competitive proposal,” and neither does Black’s Law Dictionary (10th ed. 2014). And the term “proposal” broadly encompasses invitations-for-bid and other types of solicitation methods. Id. (definition of “proposal”). 15 The Procurement Law previously authorized government contracts to be awarded by a request-for-proposal method (referred to as “competitive sealed proposals” in former 5 GCA § 5212). But this procedure was repealed long (Cont’d on next page)

Further, long before the current dispute, GIAA recognized that the

“competitive proposal procedure” language in § 1203.1(a)(1) refers to competitive sealed bidding. Specifically, in the 1995 Policies, GIAA stated that when enacting

§ 1203.1(a)(1), “the Legislature intended the competitive sealed bidding procedures (5 GCA [§] 5211, et seq.) to be used by [GIAA] in soliciting exclusive concession agreements.” ER6324 (Art. I, § 2.1) (emphasis added). GIAA also concedes that its 1995 Policies “would have required GIAA to use a ‘competitive sealed bidding procedure’ rather than an RFP.” Br. at 8.

By contrast, the Procurement Law authorizes a request-for-proposal process only in very limited circumstances—when “procuring the services of accountants, physicians, lawyers, dentists, licensed nurses, other licensed health professionals and other professionals.” 5 GCA § 5216. GIAA does not contend on appeal that this section is applicable to the Contract, and the RFP did not even attempt to comply with it. See 5 GCA §§ 5121(a), 5216(a); 2 GAR, Div. 4, §§ 2112, 3114(a);

ER7929-ER7930. Further, GIAA’s reliance on purported “industry standard” and other extrinsic evidence (Br. at 72) is irrelevant given both the clear statutory language and legislative history, Siskiyou County Farm Bureau v. Dep’t of Fish &

(Cont’d from previous page) before 12 GCA § 1203.1 was enacted in September 1992. Fleet Services, 2006 Guam 6, ¶15; see Br. at 69 n.13.

Wildlife, 237 Cal. App. 4th 411, 420 (2015), and because the actual RFP method was ad hoc, as described above.

b. Other Canons of Construction Reinforce DFS’s Proposed Reading of § 1203.1(a)(1). DFS’s interpretation of subsection (a)(1) of § 1203.1 is consistent with the remainder of that statute, including the later-added subsection (a)(4), which provides that GIAA “shall abide by the competitive bid process, to the extent consistent with good business practice.” GIAA’s contentions that subsection (a)(4) allows the use of a request-for-proposal method, Br. at 72-74, ignores that, under

Guam law, “statutes must be read together and harmonized, if possible.” See Pac.

Rock Corp. v. Dep’t of Educ., 2000 Guam 19 ¶ 25, opinion adhered to as modified on reh’g, 2001 Guam 21 ¶ 25. Both subsection (a)(1) and subsection (a)(4) were intended to impose limits on GIAA’s concession agreements. Read together and harmonized, as required by Guam law, the provisions must be interpreted as requiring GIAA to comply with only those solicitation methods that are defined and authorized by Guam law.

The legislative history of § 1203.1 confirms this interpretation. Read in its entirety, § 1203.1(a)(1)-(4) (which repeatedly uses the command “shall”) imposes mandates governing GIAA’s contracts with non-airline business and service providers. In enacting Public Law 21-135, which resulted in subsection (a)(1), the

Legislature expressed concern that GIAA’s Board could change every election

cycle, opening up possibilities for elected officials to interfere with airport operations and grant “sweetheart deals.” Guam Leg. Comm. on Ways and Means,

P.L. 21-135, Comm. Rep. at 21-22 (1992). And in enacting subsection (a)(4), senators expressed deep concerns about GIAA’s lack of transparency and openness in the solicitation process, and they wanted to create a mandate that GIAA “make sound, business decisions” with respect to concession agreements and that “the

GIAA board thoroughly consider all alternatives, especially in the bidding process, prior to making these sound business decisions.” Guam Leg. Comm. on

Transportation, Telecommunications & Micronesian Affairs, P.L. 24-255, Comm.

Rep. at 10 (1998).

Consequently, the Legislature has made clear its desire that GIAA conduct open, fair, and transparent solicitations. Although the Legislature expressed that desire using different language in subsections (a)(1) and (a)(4), DFS’s proffered construction of subsection (a)(1) is consistent with the legislative intent to limit

GIAA’s discretion in the procurement process. By contrast, GIAA’s contrary interpretation would grant the agency virtually unfettered discretion to craft any request-for-proposal process, unbounded by any rules, including GSA’s “rules and regulations” that are specifically incorporated into subsection (a)(1).

c. In The Alternative, § 1203.1(a)(4) Governs and Did Not Authorize the Method GIAA Used. To the extent this Court adopts GIAA’s position that subsection (a)(1) requires or authorizes the RFP method that GIAA used here, such an interpretation would directly conflict with the mandate in subsection (a)(4) that GIAA use a

“competitive bid process.” And because the Legislature enacted subsection (a)(4) after it enacted subsection (a)(1), the later enactment of subsection (a)(4) implicitly repealed subsection (a)(1) and required GIAA to use a competitive bid process.

Courts find repeals by implication “[w]here two statutes are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier act.” Abalos v. Cyfred Ltd., 2006 Guam 7 ¶ 20 (quoting Guam v.

Quinata, 704 F.2d 1085, 1088 (9th Cir. 1983)). In making this determination, courts use the rules of statutory construction but must first look to the language of the statute. See Government of Guam v. 162.40 Square Meters of Land More or

Less, Situated in Municipality of Agana, 2011 Guam 17 ¶ 27. “Absent clear legislative intent to the contrary, the plain meaning prevails.” Sumitomo Const.,

Co., Ltd. v. Gov’t of Guam, 2001 Guam 23 ¶ 17.

GIAA asserts there is no conflict between subsections (a)(1) and (a)(4) because subsection (a)(4) contains the phrase, “to the extent consistent with good business practice.” Br. at 71-72. According to GIAA, subsection (a)(4) does not require it to follow any particular solicitation method because it has unfettered

discretion to disregard the competitive bid process if it deems that process inconsistent with good business practice. Id. But GIAA has not demonstrated that it determined before issuing the RFP that the competitive bid process would be inconsistent with good business practice. GIAA’s post-hoc argument is also contrary to its non-litigation position set forth in the 1995 Policies that GIAA should use a competitive bid process to solicit concession agreements. ER6324

(Art. I, § 2.1).

4. The Superior Court Properly Granted Summary Judgment to DFS on its Claims Regarding the Procurement Record. The Superior Court correctly found that GIAA violated Guam law by failing to maintain and certify the Procurement Record. ER8713-ER8719. See Teleguam-

II, 2018 Guam 5 ¶¶ 34-40 (affirming the cancellation of a procurement award because of a materially incomplete procurement record).

a. The Procurement Record Was Deficient in Several Respects. Guam’s Procurement Law requires that “[e]ach procurement officer shall maintain a complete record of each procurement,” and it identifies the specific records that must be kept. 5 GCA § 5249. It also dictates that “[n]o procurement award shall be made . . .” without one. Id. § 5250. Here, GIAA’s procurement record was materially deficient in at least three respects:

 It does not contain “a log of all communications between government employees and any member of the public, potential bidder . . . which is in

any way related to the procurement” (5 GCA § 5249(b)), despite the fact that there were numerous communications that should have been logged. See ER6853-ER6854; ER6861-ER6890; ER6902-ER6904.

 It does not contain sound recordings of all negotiations, as required by § 5249(c). See ER6891-ER6894; ER6936-ER6938 at Resp. 73.

 It does not include “the date, time, subject matter and names of participants at any meeting including government employees that is in any way related to a particular procurement,” as required by § 5249(a). See ER6855-ER6860; ER6895-ER6901; ER6913; ER6918-ER6922; ER6928-ER6931.

GIAA does not dispute the first two deficiencies. As for the third, GIAA does not deny that numerous meetings took place that included GIAA’s employees related to the RFP, or that the information required by § 5249(a) is not in the procurement record.16

Specifically, with respect to the meetings related to GIAA’s counsel’s billing records, there is no dispute that these meetings took place. Br. at 77-78. Instead,

GIAA argues that “these meetings were included in the procurement record lodged with the court.” Id. at 78. This is demonstrably false, and GIAA’s citations merely point to its filings accompanying the procurement record. Simply put, GIAA does not identify any document in the procurement record containing the date, time,

16 In addition, while the Superior Court declined to make a finding that the meetings described at ER6855-ER6860 and ER6895-ER6901 actually took place, GIAA has never disputed that these meetings actually took place or that the Procurement Record does not contain the required information.

subject matter, and names of participants in every meeting related to the RFP (none exists).

GIAA’s procurement record also is not certified. As the Superior Court found, this violates § 5250, which provides that “[n]o procurement award shall be made unless the responsible procurement officer certified in writing under penalty of perjury that he has maintained the record required by § 5249 of this Chapter and that it is complete and available for public inspection.” (Emphasis added.)

b. The Procurement Record Defects Were Material. A challenger in a procurement record claim must show “the items missing from the procurement record were material to the procurement.” Teleguam-II,

2018 Guam 5 ¶ 39 (emphasis added). “Missing procurement records are material when, as a result of their absence, judicial review is thwarted in determining whether the appealing party is entitled to the relief requested.” Id., ¶ 39.

Here, the items missing from GIAA’s procurement record were unquestionably material, given the nature of DFS’s allegations in the Protest

Actions. DFS’s First and Second Protests Actions raised, among other issues, whether GIAA’s employees, directors, consultants, and attorneys had improper contacts and conflicts of interest with Lotte and its consultants; and whether Lotte improperly changed its financial offer and included Out-of-Scope Benefits. See supra Section V.A to V.C, V.E, V.F. The missing records of meetings and

communications involved some of the very GIAA employees, directors, consultants, and attorneys who are at the center of the misconduct. See id. And by not logging the relevant communications, meetings, and sound recordings of

GIAA’s negotiations with Lotte, GIAA impeded the trial court’s review of whether

DFS was entitled to the relief requested. This is particularly true given the evidence that DFS uncovered in discovery regarding the collusion between GIAA and Lotte in connection with the RFP. See supra Section V.A.

For instance, in rejecting DFS’s allegation that Lotte improperly changed its proposed MAG Rent after it submitted its bid, GIAA claimed that it “negotiated the precise amount of its MAG rent” only after it selected Lotte as the best qualified proposer. ER153-ER154. But because GIAA failed to record the negotiation session with Lotte, in violation of the Procurement Law, neither the

Superior Court nor DFS could evaluate the veracity of GIAA’s statement. This was plainly a material defect.

GIAA contends that the deficiencies could not have been material because they did not thwart review of DFS’s Third Protest Action. Br. at 78. But the materiality analysis cannot be done in a vacuum, looking solely at the Third Protest

Action, as all three Protest Actions relate to the same procurement and were consolidated below. Nor does Teleguam-II suggest that the materiality analysis should be so limited.

In any event, the incomplete procurement in fact thwarted the Superior

Court’s review of DFS’s Third Protest Action. To the extent there were meetings or communications regarding whether GIAA enacted any criteria pursuant to

§ 1203.1(a)(2) or the solicitation method to be used, they would be relevant to

DFS’s Third Protest. By not keeping the required log of communications or meetings, DFS and the Superior Court have been deprived of the ability to determine whether such meetings and communications occurred where GIAA discussed these relevant issues, such as what solicitation method should be used, thereby thwarting the Superior Court’s analysis of DFS’s Third Protest.

GIAA also argues that the defects cannot have been material because DFS received “extensive discovery,” including a taped November 2012 interview with

Lotte and contemporaneous written records of the negotiations between Lotte and

GIAA. Br. at 78-80. GIAA appears to be suggesting that DFS must prove that the missing items and sound recordings contain information not already contained in other materials produced in discovery. But the Court in Teleguam-II expressly rejected this argument, holding that “prejudice” is not required. Teleguam-II, 2018

Guam 5 ¶ 36. As this Court recognized, a prejudice requirement would effectively require the challenging party to “establish[] the contents of the missing records,” which “will never be known, as the procurement officers failed to abide by their statutory mandate to keep records.” Id.

Regardless, DFS was prejudiced by the absence of the required sound recording that captured everything said during the key negotiation sessions. With respect to the documents produced in discovery, DFS was provided only with documents that happened to be created, retained, and produced by GIAA—which is not the equivalent of GIAA capturing all meetings and communications between itself and third-parties regarding the RFP, which it was required to do, but failed.

Therefore, the Superior Court properly granted summary judgment to DFS on its claims based on defects in the Procurement Record.

5. The Superior Court Correctly Found that GIAA Violated the Procurement Law’s Mandate of Fair and Equitable Treatment to All Persons Dealing with the Procurement System. DFS also moved for summary judgment on the separate ground that, in light of all the other violations of Guam law demonstrated in the summary judgment record, GIAA had “deceived Guam public officials and employees and the Guam public that the RFP was being administered in a fair, neutral, and even-handed manner when, in fact, it was not, in violation of 5 GCA § 5001(b)(1),” which mandates fair and equitable treatment of all persons who deal with Guam’s procurement system. ER6307.

The Superior Court granted summary judgment to DFS on this independent ground, concluding that GIAA “deprived DFS and, by extension, all other

unsuccessful proposers their right to a full and fair consideration of their proposals,” in violation of 5 GCA § 5001(b)(1). ER8719.

GIAA does not contend on appeal that the court erred in granting summary judgment to DFS on this claim; nor does GIAA set forth any arguments for why reversal would be warranted. Accordingly, GIAA has waived any claim of error regarding the Superior Court’s finding, as a matter of law, that GIAA violated the

Procurement Law’s mandate for fair and equitable treatment. See, e.g., Guam Top

Builders, Inc. v. Tanota Partners, 2012 Guam 12 ¶ 78 (waiver of issues not raised and adequately briefed on appeal).

H. The Superior Court’s Remedies Were Lawful and Well Within the Court’s Discretion. As a remedy for the violations found in the Third Protest Action, the

Superior Court voided the RFP and set aside the Contract between GIAA and

Lotte. ER8719-ER8720; ER9856-ER9859. This was the appropriate remedy under the circumstances.

As set forth in Section VIII.G.1, supra, DFS’s Third Protest was made in the pre-award stage. The Procurement Law provides that if, in the pre-award stage, “it is determined that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be: (a) cancelled; or (b) revised to comply with the law.” 5 GCA § 5451 (emphasis added). The disjunctive “or” makes clear that the Superior Court has discretion to impose either remedy. And

the Superior Court here certainly did not abuse its direction in selecting the remedy of cancellation.

The Superior Court found there is “no way of revising the Specialty Retail

Concession Agreement to comply with the Procurement Law as well as GIAA’s enabling statute,” nor was there a way for the court to revise the proposed award to make it pursuant to a lawful solicitation method or complete procurement record.

ER8720; ER9857. GIAA does not argue that the Superior Court’s finding was incorrect or an abuse of that court’s discretion.

GIAA argues that DFS’s summary judgment motion was as to liability only—not remedies. Br. at 83. This assertion is meritless because this proceeding was not bifurcated or otherwise phased. DFS moved for summary judgment on its claims, and is entitled to remedies—especially the statutory remedies—once those claims are established.

In addition, GIAA argues that the Superior Court failed to consider its affirmative defenses, but it does not identify any defense that the Superior Court should have addressed, other than its argument regarding the “best interest of the territory.” Br. at 83-84. In any event, as reflected in the Superior Court’s order, the Superior Court carefully considered all the arguments, including all defenses

GIAA raised in opposition to DFS’s motion. ER8686-ER8722; ER9856-ER9859.

To the extent GIAA is now claiming that it had some other affirmative defense that

it did not raise before the Superior Court, it has waived such defense—by not raising it below—and cannot now argue that the Superior Court erred by not considering it. Tanaguchi-Ruth + Associates v. MDI Guam Corp., 2005 Guam 7

¶¶ 76-78, 80-82.

Contrary to GIAA’s suggestions, neither DFS’s claims nor § 5451 required the Superior Court to consider the “best interests of the territory” when adjudicating liability or determining the pre-award remedies. GIAA’s cited authorities on this point are inapposite. Br. at 83-84. Notably, 2 GAR Div. 4

§ 9105(b) applies only when the Procurement Officer—not the Superior Court— determines that the solicitation or award violates the law. And 2 GAR Div. 4

§ 3115 applies when the agency seeks to unilaterally cancel a solicitation, which obviously was not the case here. In any event, requiring an agency to comply with the laws at issue here in conducting its procurement is always in the Territory’s best interest.

Moreover, in addition to relying on § 5451, the Superior Court correctly voided and set aside the Contract pursuant to § 5425(g), which expressly provides that—with limited exceptions that are undisputedly not applicable here—any action taken after the automatic stay is triggered is “void.” ER8693; ER9860-

ER9861. Here, the Contract did not become effective until June 11, 2013, after

GIAA had already failed to impose the automatic stay based on the filing of DFS’s

Third Protest on June 7, 2013. ER6782-ER6786; ER2680-ER2683. As a result, the Superior Court was required to void the Contract.

I. DFS’s First Protest was Pre-Award and Timely. DFS timely lodged its First Protest on April 23, 2013, which was within

14 days of GIAA’s announcement of the award to Lotte, which occurred on April

16, 2013 (or on April 12, 2013 at the earliest). ER2618-ER2633; SER36-SER44;

ER7895-ER7918. As noted above, the trial court found that DFS’s timely First

Protest equitably tolled the deadline for DFS’s subsequent protests. See supra

Section VIII.E.2.

GIAA contends that the First Protest was untimely and the Superior Court should have granted summary judgment to GIAA on this ground, because DFS should have filed the protest within 14 days of learning the underlying facts asserted in it. Br. at 42-50. The Superior Court properly rejected this argument, since it is a fundamental misreading of the Procurement Law.

1. The Superior Court Properly Focused on When DFS Became “Aggrieved.” An actual or prospective bidder “who may be aggrieved in connection with the . . . solicitation or award of a contract” may protest, and such protest must be

“submitted in writing within fourteen (14) days after such aggrieved person knows or should know of the facts giving rise thereto.” 5 GCA § 5425(a) (emphasis added).

In Teleguam-II, this Court defined an “aggrieved” party as someone who is entitled to a remedy. 2018 Guam 5 ¶ 37. Black’s Law Dictionary likewise defines

“aggrieved” as “having legal rights that are adversely affected” or “having been harmed by an infringement of legal rights.” And the Public Auditor has similarly held that where a proposer is challenging the finding that a competing deficient proposer was awarded a contract, § 5425(a)’s deadline does not begin to run until there is a notice of the award. In the Appeal of JMI Edison, OPA-PA-13-009,

Decision, p. 9 (Nov. 27, 2013); In the Appeal of Eons Enter. Corp., OPA-PA-10-

003, Decision and Order, p. 3 (July 20, 2013).

Here, of course, DFS challenges GIAA’s evaluation and finding that Lotte was the most qualified proposer, which resulted in the GIAA’s proposed award of the Contract to Lotte. Under these circumstances, as GIAA itself recognized before this litigation (ER4995-ER5002; ER5227:2-ER5230:3), timeliness is evaluated based on the notice of the proposed award, not notice of the underlying facts that gave rise to the protest. See Data General Corp. v. Johnson, 78 F.3d

1556 (Fed. Cir. 1996) (timeliness of protest based on the “action being protested, namely the reinstatement of the award,” not when the protester knew the grounds for the protest).17

17 GIAA asserts that DFS’s First Protest does not concern GIAA’s proposed award to Lotte and its finding that Lotte was the most qualified proposer. Br. at (Cont’d on next page)

DFS therefore was not “entitled to a remedy” (Teleguam-II, 2018 Guam 5 ¶

37), until there was a sufficient triggering event, which happened here when GIAA found that Lotte was the most qualified proposer notwithstanding its misconduct.

Up to that point, GIAA had taken no position on whether Lotte would receive the award so DFS and the other proposers were not yet aggrieved because they had suffered no harm or impairment of legal rights. Regardless of when DFS allegedly knew or should have known about GIAA’s and Lotte’s underlying misconduct, none of that underlying misconduct became relevant—to the extent it would serve as the basis for a protest—unless GIAA proposed to award the concession to Lotte.

GIAA fails to cite Teleguam-II for the definition of “aggrieved,” and instead misrepresents the holding of Guam Imaging by claiming that this Court conflated the “aggrieved” element with the knowledge element. Br. at 42-26. Contrary to

GIAA’s assertion, however, this Court never stated in Guam Imaging that a proposer become aggrieved when it “‘knows or should have known’ that either the law or the terms of a solicitation have been violated.” Br. at 42.

(Cont’d from previous page) 46-47. This disregards the express language of DFS’s First Protest. See ER2618-2633. Nor did DFS somehow improperly re-characterize “pre-award violations of law as a challenge to an award,” as GIAA incorrectly argues, in order to protest old facts. Br. at 46. Rather, DFS cited GIAA’s and Lotte’s violations of Guam law and the terms and conditions of the RFP to establish and support its allegation that GIAA improperly found that Lotte was the most qualified proposer. See ER2618-ER2633.

In addition, GIAA focuses on the Court’s finding in Guam Imaging that a proposer “may file a protest on any phase of solicitation or award” and that “there may be multiple events in any given solicitation that could legitimately trigger protests.” Guam Imaging, 2004 Guam 15 ¶ 28. But nothing in Guam Imaging defines what event is sufficient to trigger a protest—in particular, Guam Imaging does not hold that the right to protest is triggered upon hearing that another proposer or GIAA may have violated Guam law.

GIAA’s position is not only wrong under the plain language of the statute and case law, it is illogical. For example, had GIAA disqualified Lotte for its misconduct—as it should have done upon learning of the misconduct—DFS and the other proposers never would have been aggrieved and would have had nothing to protest. Thus, the triggering event for DFS’s First Protest could only be the announcement that Lotte had been selected as the most qualified proposer, notwithstanding GIAA’s and Lotte’s misconduct.

Similarly, one of the key factual allegations supporting DFS’s First Protest was that GIAA disregarded its fiduciary responsibility to the People of Guam to conduct a competent and impartial investigation and disqualify Lotte. ER2618-

ER2633. DFS could not have known this critical fact until GIAA provided notice of its intent to award the RFP to Lotte on April 16, 2013.

As for DFS’s protest concerning the Improper Letter Designation, the 14- day deadline could not have accrued on March 28, 2013, as GIAA contends. Br. at

50-51. This is because GIAA did not make a definitive decision to use the

Improper Letter Designations until more than two weeks later, on April 12, 2013.

ER7905-ER7910. Critically, GIAA’s Board did not approve the letter designation process on March 28, 2013. Instead, it tabled the agenda item so that it could consider whether to approve this ad hoc process. ER2593; ER2643.18

Thus, DFS did not know that GIAA would actually use the letter designations until its April 12, 2013 meeting, when GIAA’s Board accepted management’s ranking based on that process, and April 16, 2013, when GIAA issued its notice of award based on the ranking. ER7908-ER7915.

In sum, the Superior Court properly evaluated the timeliness of DFS’s First

Protest “in relation to the underlying facts.” Guam Imaging, 2004 Guam 15 ¶ 24.

The court did not arbitrarily focus on the proposed award as the triggering event, as the trial court did in Guam Imaging; instead, the Superior Court selected that date

18 DFS did send an email on March 29, 2013, to GIAA regarding the letter designations and GIAA responded on April 5, 2013. ER2599-ER2600. But GIAA’s response did not indicate that the Board had approved and would use the Improper Letter Designations. ER2601-ER2602. In fact, the Board did not make that decision until April 12, 2013. Br. at 16; ER5014.

here because it was the critical event that caused DFS to become “aggrieved” with respect to all the claims in the First Protest.

2. GIAA Misconstrues § 5425 and Relies on Inapposite Case Law. GIAA contends that DFS became “aggrieved” as soon as it learned the basis for its protest, well before the award was announced. Br. at 42-46. But this disregards the plain language of § 5425, the holding in Teleguam-II, and the existing guidance from the Public Auditor. In order to advance this novel construction of § 5425, GIAA relies on several federal and state authorities that either do not stand for the proposition cited and/or arise under different statutory schemes. Br. at 44-46.

For instance, GIAA asserts that the Federal Court of Claims in Synergy

Solutions, Inc. v. United States, 133 Fed. Cl. 716 (Fed. Cl. 2017) held “that a proposer must bring a protest as soon as he or she learns of a violation in the procurement process, regardless of whether it occurs during the solicitation or evaluation period, or it will be deemed waived.” Br. at 44. But the court did not draw such a broad and expansive conclusion. Instead, the court held merely that the federal waiver rule applied based on the unique factual circumstances of that case. Synergy, 133 Fed. Cl. at 721, 734-740.

GIAA’s reliance on federal decisions applying the waiver rule is misplaced here for the additional reasons that this rule has never been adopted in Guam, is

based on an entirely different statutory and regulatory scheme than the

Procurement Law, and would wreak havoc on Guam’s procurement system if every proposer submitted a protest for every rumor and suspicion of misconduct, particularly if that misconduct does not become material because a different bidder or proposer is selected.19

Similarly, GIAA’s cited federal decisions discussing the timeliness of a protest (Br. at 44-46) are not persuasive. The federal regulation setting the deadline for protests does not include the term “aggrieved,” which makes it materially different from the Guam statute. Compare 4 C.F.R. § 21.2(a) with 5

GCA § 5425(a); see City & Cty of San Francisco v. United States, 130 F.3d 873,

877-78 (9th Cir. 1997) (finding based on the specific facts of the case that the protestor should have known the procuring agency would consider the proposer with the organizational conflict before notice of the proposed award).

GIAA’s reliance on state authorities (Br. at 45) is likewise misguided.

Those state cases address factually distinguishable circumstances—in particular,

19 Moreover, the waiver rule applies to patent, or obvious, defects, which is not the situation with any of the misconduct that DFS has alleged in the First Protest Action. See Synergy, 133 Fed. Cl. at 736-740; Blue & Gold, Fleet, L.P. v. U.S., 492 F.3d 1308, 1313-14 (Fed. Cir. 2007); COMINT Sys. Corp. v. U.S., 700 F.3d 1377-1382-83 (Fed. Cir. 2012); CRAssociates, Inc. v. U.S., 102 Fed. Cl. 698, 711-12 (Fed. Cl. 2011); Infrastructure Def. Techs. v. U.S., 81 Fed. Cl. 375, 388-89 (2008).

notice of proposed agency action before the final award. Here, it was not until

April 12, 2013 that DFS learned that GIAA would choose not to disqualify Lotte and would instead find Lotte to be the most qualified proposer. See James

Hamilton Const. v. State ex rel. New Mexico State Highway, 133 N.M. 627, 628-29

(N.M. 2003) (finding that protestor knew or should have known that the winning bid was not signed at the time of the opening of bids and preliminary award and could not wait until notice of final award); Bureau Veritas N. Am. v. Dep’t of

Transp., 127 A.3d 871, 875-76 (Pa. Commw. Ct. 2015) (finding that the time to submit a protest was triggered when the procuring agency published its preliminary rankings).

Contrary to GIAA’s suggestion, numerous federal and state authorities are consistent with the Superior Court’s ruling here. For instance, many authorities hold that protests based on the legal infirmity of a competing proposer need not be brought until after an award is made or the agency otherwise gives pre-award notice confirming the selection. See, e.g., Reep, Inc., (Comp. Gen.) 2002 WL

31103566 (Sept. 20, 2002); see also Kimmins Thennal Corp., (Comp. Gen.) 1990

WL 278456 (Sept. 12, 1990); Arco Mgmt. of Washington, D.C., Inc., (Comp. Gen.)

1992 WL 310270 (Oct. 13, 1992); Dayton-Granger, Inc. Reconsideration, (Comp.

Gen.) 1992 WL 48464 (Feb. 28, 1992); GTE Hawaiian Telephone Co., Inc. v.

County of Maui, PCH 98-6, 10 (December 9, 1998). And federal authorities have

made clear that a court should “resolve any reasonable doubt in favor of the protester” on issues of timeliness. Ervin & Associates, Inc., (Comp. Gen.) 1998

WL 126843 (Mar. 23, 1998).

3. To the Extent this Court Rejects DFS’s Argument Regarding the Timeliness of its First Protest, Disputed Material Facts Preclude Summary Judgment in GIAA’s Favor. In the event the Court agrees with GIAA that the deadline for DFS’s First

Protest was based on when DFS knew or should have known the underlying facts regarding the improper contacts and gift giving during the Korea trip—which it should not do—there are genuine issues of material fact as to when DFS knew sufficient facts to submit a protest.

For instance, as of October 2012, DFS had heard only rumors and conflicting accounts about what occurred during the Korea trip, and so did not know about GIAA’s involvement in the misconduct. ER849-ER851 ¶¶3-4;

ER5337-ER5377. Indeed, GIAA has denied and continues to deny many of the facts that make up the basis for the First Protest, see, e.g., ER2634-ER2670, further contradicting its argument that DFS had the material facts more than 14 days before it submitted the First Protest. And during the Initial Action, GIAA moved for Rule 11 sanctions against DFS and its counsel, arguing that “DFS’s allegations were based solely on rumor, innuendo, and insinuation, not facts.” ER948.

Moreover, DFS could not have submitted a protest until Lotte submitted a proposal, since none of Lotte’s conduct could be a violation of Guam law until

Lotte submits a proposal for consideration. Because DFS could not have submitted a protest until October 17, 2012, at the earliest, DFS’s October 30, 2012 letter to

GIAA raising the information DFS had available to it and requesting GIAA to investigate is sufficient to constitute a protest, and protect DFS’s rights. See

ER2582-ER2585.

In addition, even if the 14-day period began on October 1, 2012, that deadline would be tolled because GIAA engaged in a “continuing offense.”

Limtiaco v. Guam Fire Dep’t, 2007 Guam 10 ¶ 55. GIAA favored Lotte, turned a willful blind eye towards Lotte’s and its own misconduct, and attempted to conceal and sanitize the wrongdoing, which conduct continued up through and including the April 12, 2013 board meeting and April 16, 2013 notice of award.

There are also genuine issues of material fact about whether DFS submitting a timely protest would have been futile, which is an exception to the exhaustion requirement. See Barrett-Anderson, 2015 Guam 20 ¶ 32. Requiring DFS to file protests challenging GIAA’s intentional and willful acts when GIAA itself was an active participant in an effort to install Lotte as the specialty retail concessionaire is the very definition of futility.

Indeed, counsel for GIAA—the same counsel involved in investigating

DFS’s protests—recognized that the RFP did not comply with the Guam law and then proceeded with the solicitation anyway (with the cynical view that they would deny any protest on this ground). ER5719-ER5721. Further, futility is likewise shown by the arbitral award issued by an international arbitral body as well as the grant of DFS’s motions for summary judgment by Judge Sukola, which demonstrate that GIAA was determined to retaliate against DFS for protesting, and hide information critical to this case. ER5298-ER5336. Futility is further shown by GIAA’s willingness to grant Lotte financial benefits even after the Superior

Court voided the Contract, and even after discovery revealed the violations of

Guam procurement law previously described. See supra Section V.A and V.J.

J. The Superior Court Correctly Found that Genuine Issues of Material Fact Preclude Summary Judgment to GIAA in the Second Protest Action. In the Second Protest Action, DFS challenged the award to Lotte on the ground that Lotte had sweetened its offer to GIAA in two impermissible ways:

(1) Lotte made untimely modifications to its initial proposal, offering GIAA an increased MAG and Percentage Rent after the deadline; and (2) Lotte offered to make capital improvements that were outside the scope of the procurement. See supra Section V.A. The Superior Court properly denied summary judgment to

GIAA in the Second Protest Action, finding genuine issues of material fact.

ER8664-ER8685.

1. The Superior Court Correctly Denied GIAA Summary Judgment As to the Increased Financial Offers. GIAA contends it is “undisputed” that Lotte did not modify its initial financial offer, and that GIAA had broad discretion to consider the additional benefits offered by Lotte. Br. at 61-65. But there is (at the very least) a genuine issue of material fact as to whether Lotte modified its proposal after the proposal submission deadline. ER8681-ER8684.

In its Proposal, Lotte offered a MAG Rent of $13 million—which was less than DFS’s MAG Rent (which was $15.25 million) by more than $2 million per year—and a Percentage Rent Rate of 30.1%. ER5901; ER3371. Even though the

RFP precluded post-deadline modifications, Lotte’s presentation to GIAA—given more than a month after it submitted its initial proposal—increased its MAG Rent and Percentage Rent Rate. The MAG Rent offer increased the original $13 million proposal to $15.4 million, and the Percentage Rent Rate climbed to 33 percent—a nearly 3% increase from its Proposal. ER3372-ER3373; ER3515.

The presentation through which Lotte submitted these new numbers itself noted in all capital letters that the figures were “UPDATED FROM INITIAL

SUBMISSION.”20 ER3515. It could not have been a coincidence that the upwardly revised guaranteed rent figure just exceeded DFS’s own proposal by less than one percent. ER3515.

ER6110-ER6118 ¶¶32-

33. And GIAA’s own outside consultant, after reviewing Lotte’s interview materials, stated that “the new MAG and % rent is quite clear.” ER5944-ER5992; see also ER7811:19-ER7813:22.

After Lotte’s Presentation to GIAA, in a March 15, 2013 letter from Lotte to

GIAA, Lotte further changed its financial offer from the presentation in three material ways.

First, during its Presentation, Lotte offered a minimum $2 million per year as a “marketing fee” from a non-existent downtown store. ER3504. However, in its letter, Lotte reflected that the contributions in Years 3-5 from the non-existent downtown store would be less than $2 million per year. ER3536.

Second, in its Presentation, Lotte did not specifically identify a MAG Rent for the non-existent retail space on the non-existent Third Level. ER3490;

20 In addition to rent, each proposer was required to identify the amount of its capital investment for proposed retail space improvements and other start-up costs. ER3342; ER3348-ER3349. Lotte changed its capital investment from $36 million in its Proposal to $55 million in the interview. ER5898-ER5900; ER3515.

ER3506-ER3509; ER3514-ER3515. In contrast, Lotte’s letter proposed a MAG

Rent of $600,000 per year starting in Year 4. ER3536.

Third, in its Presentation, Lotte proposed a $15.4 million MAG Rent for just one proposed retail area only, ER3515, but in its letter, Lotte’s proposed MAG

Rent included all proposed retail spaces yet only included a proposed a MAG Rent of $15.36 million, ER3536.

GIAA’s assertions below that these updates were mere “clarifications” rather than a new proposal altogether are not credible—especially considering that the contemporaneous conclusions of GIAA’s own consultant are to the contrary—and plainly raises a factual issue. ER3526-ER3528; ER2536. All of this creates material fact disputes that preclude summary judgment. Further, GIAA never attempts to explain how the nearly 3% increase in the percentage rent rate from

30.1% to 33% could be a “clarification.” See ER3515.

In holding that there is a genuine issue of material fact as to whether the figures that were “UPDATED FROM INITIAL SUBMISSION” were impermissible modifications, the Superior Court did not “solely” rely on the notes of a GIAA evaluator, as GIAA argues. Br. at 62-63. Instead, the court relied on the above-described facts to deny summary judgment to GIAA: “the evidence that

Lotte included in its presentation materials that the MAG Rent and Percentage

Rent Rate for the ‘Main Concession’ was $15.4 million and 33.0%, as well as

concluding during its interview that the figures were ‘updated from initial submission,’ presents a genuine issue of material fact.” ER008683; see also

ER3515. The court also held that there was a genuine issue of material fact as to the reason why the Percentage Rent Rate jumped from 30.1% to 33%, which

GIAA had not (and still has not) even attempted to explain. ER008683; see also

ER3515.

In any event, DFS established that at least three of the evaluators considered

Lotte’s updated financial proposal by relying on the report from GIAA’s consultant that included Lotte’s updated proposal and Out-of-Scope Benefits. ER5876:9-11;

ER5879:23-ER5882:4; ER6016:23-ER6017:9; ER6018:2-5; ER6027:13-

ER6028:3; ER6029:18-ER6030:2; ER6037:21-ER6038:2; ER5999-ER60003;

ER3541-ER3545. While two of the scoresheets do not contain any notes, the score sheets and notes from the other two evaluators clearly reference portions of Lotte’s updated financial offer and Out-of-Scope Benefits. ER6007; ER3557-ER3558;

ER3548-ER3549.

In sum, there is substantial—in DFS’s view, and even compelling—evidence that Lotte impermissibly modified its bid after the proposal deadline. The Court should reject GIAA’s straw-man argument that DFS’s allegations are somehow

“indisputably false.” Br. at 62.

2. The Superior Court Correctly Denied Summary Judgment to GIAA on Out-of-Scope Benefits. The Superior Court also correctly denied GIAA’s motion for summary judgment with respect to the additional benefits offer by Lotte in its proposal, including improvements to various “non-retail” areas of the airport. ER8674-

ER8679. There are genuine disputes of material fact that precluded summary judgment in GIAA’s favor.

Despite the RFP defining the scope of the retail area, Lotte in its proposal proposed making significant improvements, valued at over $6.7 million outside this area—namely, renovations to the food court, bathrooms, smoking lounge, and installation of a children’s play zone and Internet station.21 ER3314; ER3317;

ER3338; ER3457; ER5854-ER5860; ER5890-ER5895; ER5903-ER5904;

21 Lotte’s Proposal also referenced vague and indefinite plans to “potentially look to build a downtown store” and its willingness to “enter into discussions with the GIAA about how it could provide assistance with funding” of a new third level to the Airport (“Third Level”). ER5903-ER5904 (italics added). In its interview, however, rather than “potentially look[ing] to build a downtown store,” which was all that Lotte’s original Proposal vaguely had indicated, in its Presentation, Lotte stated that “Lotte Duty Free will open a downtown duty free store in Guam” and a “% of downtown sales on ALL CATEGORIES will be paid to GIAA as a marketing fee = minimum US$2 million.” ER3504 (italics added). Further, Lotte also stated at the Presentation that it “is willing to invest circa. $32 million (in cash or other forms) to fund the 3rd level infrastructure development” and that GIAA would receive a “3rd Level Retail Concession Fee” as well as “further revenues” from new “F&B space.” ER3508 (italics added); ER3514. This constitutes yet another change to Lotte’s financial proposal.

ER5898-ER5900.

ER7814:288:16-ER7815:4; see also ER7810:5-ER7811:17.

The RFP had a section for “Other Information” at the end of the packet, but

GIAA now expansively interprets this “Other Information” section to authorize proposers to make offers entirely unrelated to the concession, which is contrary to how DFS and others understood the language. ER3351. The Superior Court reasonably concluded that the parties thus had a dispute as to a genuine issue of material fact—whether the proposed Out-of-Scope Benefits were permitted by the

RFP—that could be resolved only by resort to extrinsic evidence (in a trial), and not by looking at the language of the RFP alone. ER008678.

GIAA contends that there is no such factual dispute, and that the Superior

Court should have resolved DFS’s claim as a purely legal matter. Br. at 64-65.

GIAA vaguely contends that it had broad “discretion” to consider any material included in responses to its request for proposals. To the extent GIAA had discretion, however, it was only to disregard “minor informalities” or “minor irregularities,” not wholesale violations of the Procurement Law. ER3326;

ER3332. Further, as the Superior Court properly held, “an open-ended provision contained in the Procurement would violate Guam’s Procurement Law” and its

guarantee of “‘fair and equitable treatment of all persons who deal with the procurement system.’” ER008679 (quoting 5 GCA § 5001(b)(4)).

IX. SUMMARY OF ARGUMENTS IN SUPPORT OF DFS’S CROSS-APPEAL DFS raises two straightforward issues in its cross appeal.

1. The Superior Court erred when it dismissed the First and Second

Protest Actions as moot because they raise GIAA and Lotte misconduct that was not adjudicated, and because DFS still has effectual relief available to it.

2. The Superior Court erred when it denied DFS its costs pursuant to

GRCP 54(d). DFS prevailed in this civil action and is entitle to its litigation- related costs, just as any other civil litigant.

X. ARGUMENTS IN SUPPORT OF DFS’S CROSS-APPEAL

A. The Superior Court Improperly Dismissed the First and Second Protest Actions as Moot. In its Protest Actions, DFS sought various forms of relief, including injunctive and equitable relief, such as the appointment of a special master to oversee the new solicitation method and/or to enjoin GIAA from permitting Lotte to participate in the new solicitation. ER38-ER40; ER137-ER139; ER333-ER334.

Following the grant of summary judgment to DFS in the Third Protest Action, the

Superior Court dismissed DFS’s First and Second Protests Actions as moot because it incorrectly found that any additional remedies outside of those already

provided were “beyond the Court’s jurisdiction” and “that there are no remedies left for the Court to grant.” ER9867-ER9870.

A claim “becomes moot only when the issues are no longer live or the parties lack a legally cognizable interest in the outcome.” Town House Dep’t

Stores v. Ahn, 2000 Guam 32 ¶ 9; Tumon Partners, LLC v. Shin, 2008 Guam 15 ¶

37. “The test for mootness is whether the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant the complaining party effectual relief.” Tumon Partners,

2008 Guam 15 ¶ 37; see Rapadas, 2011 Guam 28 ¶ 16.

Here, the Superior Court’s decisions resolved those claims in the Third

Protest Action, and did not adjudicate the claims asserted in the First and Second

Protest Actions. Even though the relief already awarded may overlap with the relief sought in the other, unresolved claims in the First and Second Protest

Actions, those unresolved claims remain justiciable because DFS continues to have a “stake in the alternative grounds for judgment” because GIAA has appealed the

Superior Court’s decision and this Court may reverse the Superior Court.

Molinary v. Powell Mountain Coal Co., 76 F. Supp. 2d 697, 700-01 (W.D. Va.

1999); Air Line Pilots Ass’n, Intern. V. UAL Corp., 897 F.2d 1394, 1396-97 (7th

Cir. 1990).

Moreover, contrary to the Superior Court’s finding, additional remedies may be awarded to DFS in the First and Second Protests Actions. Because this is a civil action pursuant to § 5480(a), the Superior Court has the full panoply of remedies that would be available in any other civil action. While the Procurement Law does include a specific statutory remedy in § 5451, nothing in that section provides that these remedies are exclusive. To the contrary, § 5480(a) makes clear that “[t]he

Superior Court shall have jurisdiction in action at law or in equity, and whether the actions are for monetary damages or for declaratory, or other equitable relief.”

And to avoid any doubt about the broad scope of the Superior Court’s remedial authority, § 5480(c) states that “[i]n addition to other relief and remedies, the

Superior Court shall have jurisdiction to grant injunctive relief.” The remedies available in the Procurement Action are thus broad and not limited to only those expressly set forth in § 5451.

In addition, DFS’s First and Second Protests Actions contain several independent claims that seek relief materially different from the relief sought in the

Third Protest Action. For instance, in its third, sixth, and twelfth causes of action in the First Protest Action, DFS is asserting declaratory relief claims that seek a declaration that GIAA violated 5 GCA §§ 5630(a), 5630(d), and 5631(a), respectively. ER1-ER40. Likewise, in its third and sixth causes of action in the

Second Protest Action, DFS seeks declarations that GIAA (1) improperly accepted

Lotte’s Out-of-Scope Benefits and (2) permitted Lotte to improperly modify its financial proposal. ER114-ER139. The Superior Court denied GIAA’s motions for summary judgment regarding the First and Second Protests Actions and DFS did not cross-move for summary judgment on those claims. ER8646-ER8663;

ER8664-ER8685.

Thus, because DFS seeks relief that relates to only the specific underlying misconduct alleged in the First and Second Protests Action, those actions cannot have been mooted by the Superior Court granting DFS’s summary judgment motion. See, e.g., Powell v. McCormack, 395 U.S. 486, 498-99 (1969) (finding that declaratory relief claim was justiciable even when other claims were mooted);

Southern Pacific Transportation Co. v. Public Utility Commission, 9 F.3d 807, 810

(9th Cir. 1992) (controversy regarding legality of challenged statute and rule remained live even after the rule at issue was rescinded because of possibility that commission could enact similar rules or enforce other related rules).

Further, the Superior Court denied DFS’s request for its proposal-related costs pursuant to § 5425(h), because DFS did not make the required showing in its summary judgment motion. ER9871-ER9874. That means, however, that there are additional effectual remedies that DFS could obtain through the First and

Second Protests Actions (namely, the proposal-related costs).

The Superior Court’s decisions and orders and judgments below also do not address the Mediation Term Sheet entered into between GIAA and Lotte. See

ER9862-ER9874; ER9860-ER9861. Although DFS submits that this Mediation

Term Sheet is nothing more than an amendment to the Contract and therefore voided by the Amended Judgment, DFS suspects that GIAA will take a contrary position and argue that the Mediation Term Sheet has not been voided and set aside by the Amended Judgment. Therefore, an order voiding and setting aside the

Mediation Term Sheet is yet another remedy available to DFS through the First and Second Protests Actions.

Because DFS still has available remedies, the Superior Court could provide effective relief in the First and Second Protests Actions. The Court should reverse the Superior Court’s July 16 Order dismissing those actions as moot.

B. The Superior Court Improperly Denied Costs To DFS. Even though GRCP 54(d) creates a presumption that DFS, as the prevailing party, is entitled to its taxable costs, the Superior Court denied DFS its Rule 54(d) litigation-related costs based on an incorrect finding that DFS is entitled to costs only if it makes the required showing under a separate and distinct cost statute,

§ 5425(h).

Rule 54(d) provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the Court otherwise directs . . . .” GRCP

54(d). This rule, as further explained by Local Rule 54.1, applies to costs incurred by a prevailing party during the course of litigation, such as filing fees and deposition costs.

Rule 54(d) “codifies a venerable presumption that prevailing parties are entitled to costs.” See Marx v. General Revenue Corp., 568 U.S. 371, 376-77

(2013) (interpreting the analogous Federal Rule 54(d) from which Guam Rule

54(d) was borrowed). The losing party—GIAA—has the burden of overcoming this presumption by affirmatively showing that the prevailing party—DFS—is not entitled to costs. Save Our Valley v. Sound Transit, 335 F.3d 932, 944-945 (9th

Cir. 2003). GIAA never satisfied its burden that DFS was not entitled to costs pursuant to GRCP 54(d).

Further, while GRCP 54(d) provides that “costs against the Government of

Guam, its officers, and agencies shall be imposed only to the extent permitted by law,” this provision does not prohibit DFS from obtaining costs against GIAA.

Courts have stated that a similar provision in the Federal Rule 54(d) “is merely declarative of the fact that, due to the sovereign immunity doctrine, the United

States must consent before it may be held liable for the payment of costs.” See, e.g., Epling v. U.S., 958 F. Supp. 312, 314 (W.D. Ky. 1997). That concern is not applicable here, because this Court has already found that the Legislature waived

GIAA’s sovereign immunity through the “sue or be sued” clause, DFS-I, 2014

Guam 12 ¶ 23 n.3, and through § 5480.

In denying costs to DFS, the Superior Court not only improperly placed the burden on DFS but also incorrectly found that because DFS had not made the required showing under § 5425(h), it could not receive costs under Rule 54(d).

ER9871-ER9874. But that conflates two separate and distinct cost provisions.

Unlike Rule 54(d)—which addresses taxable litigation-related costs—§ 5425(h) governs “reasonable costs incurred in connection with the solicitation and protest, including bid preparation costs.” Nothing in § 5425(h) provides or authorizes a prevailing protestor to recover its litigation-related costs, which are governed solely by Rule 54(d). Moreover, § 5425(h) expressly states that the award of solicitation and protest-related costs is “[i]n addition to any other relief or remedy granted . . . under Subsection (a) of § 5480 . . . .”

Because the Superior Court abused its discretion when it required DFS to make the showing required by § 5425(h) in order to obtain costs under GRCP

54(d),22 the Court should reverse the portion of the Amended Judgment indicating that “[e]ach side will be responsible for its own costs.”

22 The Superior Court’s reliance on this Court’s decision in Data Mgmt., 2013 Guam 27, is misplaced. In Data Management, the protesting party was seeking its “reasonable costs and attorney’s fees associated with its procurement (Cont’d on next page)

XI. CONCLUSION This Court should affirm the grant of summary judgment to DFS in the

Third Protest Action, including the cancelling, voiding and/or setting aside of the

RFP and the resulting Contract. And this Court should affirm the denial of summary judgment to GIAA in all three Protest Actions. In addition, the Court should remand the case to award DFS its GRCP 54(d) costs and to conduct a trial on the remaining two complaints to determine whether DFS is entitled its additional requested relief.

Respectfully submitted this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

(Cont’d from previous page) protest.” Id., ¶ 52 (emphasis added). Here, DFS is seeking its Rule 54(d) litigation-related costs, not its procurement protest costs.

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CERTIFICATE OF COMPLIANCE This brief complies with the type volume limitation of Rule 13.2(e)(2)(B) because this brief contains no more than (1) 16,500 plus (2) an additional 6,000 words per the Court’s Order dated December 3, 2018, excluding the parts of the brief otherwise exempted from Rule 16(a)(7)(B)(iii).

Respectfully submitted this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

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STATEMENT OF RELATED CASES

Pursuant to GRAP 13(l), Appellee and Cross-Appellant DFS Guam, L.P. hereby certifies that there are no cases related to the instant appeal that: (1) concern the instant case being briefed; (2) raise related issues; and (3) involve the same events.

Respectfully submitted this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

102

CERTIFICATE OF SERVICE

I, G. PATRICK CIVILLE, hereby certify that on the 15th day of January,

2019, I caused the (1) [Filed Provisionally Under Seal] Principal and Response

Brief of Plaintiff-Appellee/Cross-Appellant DFS Guam, L.P. and (2) Plaintiff-

Appellee/Cross-Appellant DFS Guam L.P.’s Supplemental Excerpts of Record to be served electronically under the Supreme Court’s electronic filing system and pursuant to the electronic filing rules, addressed to the following:

Attorneys for Defendant-Appellant / Cross-Appellee Antonio B. Won Pat Int’l Airport Authority, Guam

Kathleen V. Fisher, Esq. Genevieve P. Rapadas, Esq. Jay D. Trickett, Esq. Sarah L. Fabian, Esq. Calvo Fisher & Jacob, LLP 259 Martyr Street, Suite 100 Hagåtña, Guam 96910

Dated this 15th day of January, 2019.

CIVILLE & TANG, PLLC

By: /s/ G. Patrick Civille G. PATRICK CIVILLE Attorneys for Plaintiff-Appellee / Cross-Appellant DFS Guam L.P.

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