2017-0548, Conduent State & Local Solutions, Inc. v. New Hampshire Department of Transportation & a.

(Conduent), appeals an order of the Superior Cour t (Nicolosi, J.) denying HICKS, J. The plaintiff, Conduent State & Local Solutions, Inc.

Transportation Systems, Inc. Cori P. Palmer on the brief, and Mr. Deschenes orally), for defendant Cubic Hin c kley, Allen & Snyder, LLP, of Manchester (Daniel M. Deschenes and

brief and orally), for defendant New Hampshire Department of Transportation. Gordon J. MacDonald, attorney general (Jessica King, attorney, on the

plaintiff. Braley, and Cooley A. Arroyo on the brief, and Mr. Gould orally), f or the Cleveland, Waters and Bass, P.A., of Concord (Bryan K. Gould, Philip R.

NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION & a.

No. 2017 - 0548 Merrimack

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

underwent a formal name change to Conduent State & Local Solutions, Inc. divisions, Xerox State & Local Solutions, Inc. became a subsidiary of Conduent Incorporated and processing division of Xerox Corporation. After Xerox Corporation divested itself of its processing The p. 2 2004 contract was between DOT and Xerox State & Local Solutions, Inc., which was a 1

identified the weights to be applied to the different components of the technical the technical proposal and 30 points allocated to the price proposal. The RFP t he bids would be evaluated on a 100 - point scale with 70 points allocated to “proposed candidates,” and cost. The RFP informed prospective bidders that contractor and any subcontract or, the experience and qualifications of evaluated with regard to the services proposed, the qualifications of the The RFP informed prospective bi dders that each proposal would be

any time.” RFP reserved to DOT the “sole discretion” to “reject any and all Proposals at RFP required bidders to submit a technical proposal and a price proposal. The tolling, video tolling, vio lation processing and E - ZPass. . . reciprocity.” The bids for “a new back office system and related operations to support electronic p. 2 2004. In December 2014, DOT issued a request for proposal (RFP) soliciting 1 Conduent has had a contract with DOT to provide these services since

developing and maintaining the E - ZPass website. collection systems in other states, staffing E - ZPass service centers, and identifying and enforcing E - ZPass violations, coordinating with electronic toll distributing E - ZPass transponders, interacting with credit card companies, such as developing and maintaining software, managing E - ZPass accounts, The E - ZPass system requires a variety of so - called “back office” activities,

charged to th e account associated with the detected transponder. and, when a vehicle with a transponder passes through a tollbooth, a toll is toll lanes without stopping. DOT maintains accounts for all E - ZPass users “E - ZPass” system, which allows a vehicle with a transponder to pass through The relevant facts follow. DOT collects tolls electronical ly through the

evaluating competing bids. We affirm. the new system, it lacked authority to use the “best value” method for Alternatively, Conduent a sserts, even if DOT had statutory authority to procure Administrative Services (DAS). See RSA ch. p. 2 21 - I (2012 & Supp. 20 17). procurement authority is given to the New Hampshire Department of that DOT had no statutory authority to procure the new system because competing bids. See N.H. CONST. pt. I, art. p. 3 37. On appeal, Conduent argues DOT’s electronic collection of tolls, using the “best value” method for evaluating defendant Cubic Transportation Systems, Inc. (Cubic) a new system to support therefore, violated the separation of powers doctrine, by procuring from Department of Transportation (DOT) exceeded its statutory authority, and, Conduent’s request for a declaration that defendant New Hampshire 3

regard to an actual, not hypothetical, dispute, which is capable of judicial have personal legal or equitable rights that are adverse to one another, with “S tanding under the New Hampshire Constitution requires parties to

novo. See i d. the underlying facts are not in disp ute, we make the standing determination de Planning Bd., 157 N.H. 94, 96 (2008) (quotation and ellipsis omitted). Because demonstrated [its] right to claim relief.” Johnson v. Town of Wolfeboro determine, based on the facts, whether the [plaintiff has] sufficiently trial court must look beyond the [plaintiff’s] unsubstantiated allegations and “When a motion to dismiss challenges the [plaintiff’s] standing to sue, the

“standing is a question of subject matter jurisdiction”). raise them. See Duncan v. State, 166 N.H. 6 p. 3 30, 640 (2014) (explaining that consider Cubic’s assertion that Conduent has failed to establish standing to Before addressing the merits of Conduent’s appellate arguments, we

I. Conduent’s Standing

Conduent unsuccessfully moved for reconsideration, and t his appeal followed. use the “best value” method under RSA 21 - I:22 - a and:22 - b (Supp. 2017). procure the back office services system contract under RSA chapter 2 p. 3 37 and to deciding that Conduent has standing and ruled that DOT had authority to dismiss in a single, narrative order in which the court assumed without Conduent’s partial summary judgment mot ion and the defendants’ motions to to bring a claim for violation of separation of powers. The trial court resolved IX on similar grounds and also on the ground that Conduent lacked standing count IX was un supported as a matter of law. Cubic moved to dismiss count on count IX. DOT moved to dismiss count IX, asserting, in pertinent part, that See N.H. CON S T. pt. I, art. 37. Conduent moved for partial summary judgment the separation of powers doctrine, by conducting the procurement at issue. IX of its complaint that DOT exceeded its statutory authority, thereby vi olating Conduent subsequently brought the instant action, maintaining in count

awarded to Cubic as the “back office system services contract.” and Executive Council appro ved in October 2015. W e refer to the contract negotiations with Cubic and, ultimately, executed a contract that the Governor Cubic’s total score was 80.76. Accordingly, DOT entered into contract Conduent’s total score for both its price and technical proposals was 80.12; but scored Cubic higher than it scored Conduent on the technical proposal. DOT scored Conduent higher than it scored Cubic on the price proposal,

to be the best qualified b ased upon the specified criteria. permitted DOT to enter into contract discussions with the bidder it determined price proposals would be judged. Once the bids were evaluated, the RFP and price proposals and specified the c riteria by which both the technical and p. 4 4

this case were presented to the trial court in the context of a partial summary We turn now to the merits of Conduent’s appeal. Although the issues in

II. Conduent’s Appeal Issues

injunctive relief. immunity render s DOT immune from Conduent’ s previously - pleaded claim for dispositive, particularly in light of the trial court’s determination that sovereign Conduent sought decla ratory relief, rather than an i njunction, is not value method to evaluate bids — sufficient to establish standing. Th e fact that and the claimed violation — a procurement conducted by DOT using the best connection between its injury — not being selected as the successful bidder — We conclude that Conduent has demonstrated the requisite causa l

unlawful and that the resulting contract with Cubic was void. Count IX,” but rather sought only a declaration that the procurement was award to Conduent,” observing that Conduent “did not seek this relief through authority [to] conduct the procurement, this would not result [in] a contract separation of powers violation.” Cubic asserts that “if [DOT] lacked the “cannot demonstrate that it sustained an injury traceable to the alleged Cubic contends that, similar to the defendants in Actavis, Conduent

outside counsel on a contingency fee basis.” Id. at 216 (quotation omitted). the State’ s failure to obtain legislative and executive approval before retaining counsel’s] participation — cannot fairly be traced to the challenged violation — the alleged injury — an investigation allegedly inherently biased by [the outside holding that the defendants had failed to establish an actual dispute “[b] ecause subpoenas issued in that investigation. I d. at 21 p. 4 4. We rejected that argument, the OAG’s investigation of them and because they were the targets of argued that they had standing because the contingency fee agreement tainted retaining such counsel, as required by statute. Id. at 212 - 13. The defendants because the OAG had failed to obtain legislative and executive approval before Office of the Attorney General (OAG) and outside counsel was ultra vires companies had standing to claim that a contingency fee agreement between the Actavis. The issue in that case was whether the defendant pharma ceutical In arguing that Conduent lacks standing, Cubic relies primarily upon

directly affected.” Id. (quotation omitted). omitte d). “Rather, the party must show that its own rights have been or will be large is sufficient to constitute a personal, concrete interest.” Id. (quotations indistinguishable from a generalized wrong allegedly suffered by the public at interest in ensuring that the State Constitution is observed nor an i njury designed to protect.” Id. at 21 p. 5 5 (quotation omitted). “Neither an abstract focus on whether the party suffered a legal injury against which the law was brackets omitted). “In evaluating whether a party has standing to sue, we redress.” State v. Actavis Pharma, 170 N.H. 211, 21 p. 4 4 (2017) (quotation and 5

authority is subject are other provisions in RSA chapter 21 - I, the plain Although Conduent asserts that the only law to which DAS’s procurement procurement authority is not absolute, but rather is qualified by other laws. law.” (Emphases added.) Under the plain meaning of that provision, DAS’s or rental of data processing equipment . . . , except as otherwise provided by departments and agencies of the state including contracting for the purchase “[p] urchasing all materials, equipment, supplies, and services for all services, which is part of DAS, “shall be responsible for,” among other things, accord ance with applicable law,” the division of procurement and support I:11 (Supp. 2017). RSA 21 - I:11, I(a)(1) provides, in pertinent part, that, “in authority to be exclusive. DAS’s procurement authority is set forth in RSA 21 governing DAS’s procurement authority, the legislature did not intend DAS’s we agree with DOT that, pursuant to the plain meaning of the statute We do not share Conduent’s interpretation of RSA chapter 21 - I. Rather,

contract with Cubic were ultra vires.” procurement of the E - ZPass [back office services system] and the resulting to procure for [DOT] except in limited specified cases not present here, [DOT’s] construction.” Thus, because RSA chapter 21 - I “assigns to [DAS] the authority . . . agree that the [back office services system] contract is not for such forms of maintains that DOT is not a statutorily - exempt agen cy and that “the parties construction contracts for highways, bridges, and the like.” Conduent statutorily exempt agency or they fall within [DOT’s] authority to procure agencies “m ust be conducted by [DAS] unless they are carried out by a RSA chapter 21 - I, “[a]ll procurements” for executive branch administrative new back office services system contract. According to Conduent, pursuant to Conduent first argues that DOT lacked statutory authority to procure a

language of the statute to discern legislative intent. Id. (slip op. at 4 - p. 5 5). statutory scheme. Id. Absent an ambiguity, we will not look beyond the language in light of the policy or purpose sought to be advanced by the enables us to better discern the legislature ’ s intent and to interpret statutory in isolation, but rather within the context of the statute as a whole. Id. This absurd or unjust result. Id. Moreover, we do not consider words and phrases parts of a s tatute together to effectuate its overall purpose and to avoid an language that the legislature did not see fit to include. Id. We construe all written and will not consider what the legislature might have said or add ordinary meaning. Id. We interpret legislative intent from the statute as itself, and, if possible, construe that language according to its plain and statute considered as a whole. Id. We first look to the language of the statute final arbiter of the intent of the legislature as expressed in the words of the June 2 8, 2018) (slip op. at 4). In matters of statu tory interpretation, we are the interpretation de novo. Polonsky v. Town of Bedford, 1 71 N.H. ___, ___ (decided engage in statutory interpretation. We review the trial court ’ s statutory concern pure ques tions of law. Resolving the issues on appeal requires that we judgment motion and two motions to dismiss, the only issues on appeal p. 6 6

chapter 237 to improve, operate, and maintain the turnpike system, in general, We conclude that the broad authority conferred upon DOT by RSA

incurred by an account holder.” RSA 237:1 p. 6 6 - g (2012). system for the payment of no n - toll based financial obligations voluntarily (2012). Additionally, DOT has the discretion to “approve the use of the E - ZPass and to improve traffic management in the state and region,” RSA 237:16 - b system agreement . . . in order to increase the efficiency of turnpike operation to enter into and carry out the provisions of a regional electronic t oll collection authorizes DOT “to execute all documents and perform all other acts necessary As to the E - ZPass system, in particular, RSA chapter 237 expressly

collection equipment,” R SA 237:2, VIII. Everett Turnpike,” RSA 237:2, IV(i), and “[a]cquire and install new toll “intelligent transportation systems infrastructure” on a portion of the “F.E. use of the central New Hampshire turnpike). DOT is authorized to install using the eastern New Hampshire turnpike), :40 (2012) (referring to tolls f or the system. RSA 237:9 (Supp. 2017); see RSA 237:24 (2012) (referring to tolls for Council, to “establish toll rates and other charges” for using the turnpike DOT has the authority, with the approval of t he Governor and Executive

based upon their recommendations. RSA 237:5, II (m); see RSA 237:5, II(k), (l). studies and, upon legislative approval, “extend or add” to the turnpike system engineers or consulting services” as may be necessary to conduct certain the public good,” RSA 237:5, II(j). As well, DOT may employ “such assistants, of the state,” RSA 237:5, II(i), and “perform all such acts as are necessary for turnpike system is the authority to “[e]nter into contractual relations on behalf Specifically included in DOT’s authority to operate and maintain the

does not refer to how DOT may conduct competitive bidding. lowest responsible bidder.” RSA 237:14 (2012). Otherwise, RSA chapter 237 (l). RSA chapter 237 requires DOT to award construction contracts to “the (f); and (3) commission or conduct studies, see RSA 237:2, II - a, VII(a), 5, II (k), construction projects, see RSA 237:2, II - c, II - d, II - e, IV(b), (d), (g), VII, : 5, II(e), authority to: (1) acquire land, see RSA 237:2, II, VII(a), :5, II(b); (2) engage in In order to improve, operate, and maintain the turnpike system, DOT has the hi ghways in the state. RSA 237:1, III (2012); see RSA 237:2, :5 (Supp. 2017). and maintain the “New Hampshire Turnpike System,” which comprises the toll contract. RSA chapter 237 grants DOT broad authority to improve, operate, chapter 237 gave DOT the authority to procure the back office services system Conduent next asserts that the trial court erred when it ruled that RSA

exclusively, to DAS. services system contract because the legislature delegated that authority, argument that DO T could not have had authority to procure the back office language of RSA 21 - I:11, I(a)(1) is not so limited. Thus, we reject Conduent’s p. 7 7

option is clearly stated in the body of the document and if used as the reason judgments on the capabilities of vendors to complete the work requested if this subdivision shall prevent the state or a state agency . . . from making submitting bids or proposals.” It also provides that “[n]othing in this state agency . . . shall not be made on criteria that are unknown to the parties RSA 21 - I:22 - b pro vides that “awards which are made by the state or by a

price be weighed more heavily than any other factor. allows an agency, such as D OT, to weigh criteria and does not require that preclude the use of subjective factors. Moreover, RSA 21 - I:22 - a specifically 21 - I:22 - a. Although RSA 21 - I:22 - a refers to “o bjective criteria,” it does not the submission, and the standards upon which any award will be based.” RSA there are particular requirements that will receive more weight in the review of document the objective cri teria by which each submission will be reviewed, if It provides that every such request must “contain within the body of the is greater than $35,000 that is undertaken by the state or by a state agency.” reque st for purchases . . . , request for quotes . . . or other procurement which more weight than any other valid criterion. RSA 21 - I:22 - a pertains to “every statutes allow the use of subjective criteria and do not require price to be given Conduent’s interpretation of RSA 21 - I:22 - a and :22 - b is flawed. Those

value method to evaluate the competitive b ids in this case. do this. Thus, Conduent maintains that DOT had no authority to use the best Conduent argues that neither RSA 21 - I:22 - a nor :22 - b permit a state agency to specific evaluation criteri a stated in the solicitation” (footnote omitted)). technical considerations in selecting the successful offeror, according to the best value method, “an agency reserves the right to trade off cost and Agency Discretion?, 22 Pub. Cont. L. J. 2 p. 7 75, 276 (1992) (explaining that, under Goldstein, Best Value S ource Selection — Contracting for Value, or Unfet tered price less heavily than other factors. See Carl J. Peckinpaugh & Joseph M. agency to evaluate competitive bids based upon subjective factors and to weigh specifications. According to Conduent, the bes t value method allows a state must award a state contract to the lowest bidder who meets the project’s evaluate competing bids. Conduent asserts that, generally, state agencies that RSA 2 1 - I:22 - a and :22 - b allow DOT to use the best value method to Conduent next contends that the trial court erred when it determined

traffic management in the state and region,” RSA 23 p. 7 7:16 - b. . . . in order to increase the efficiency of turnpike operation and to improve carry out the provisions of a regional electr onic toll collection system agreement equipment,” RSA 237:2, VIII; and “perform[ing] all . . . acts necessary to . . . public good,” RSA 237:5, II(j); “[a]cquir[ing] and install[ing] new toll collection state,” RSA 237:5, II(i); “perfor m[ing] all such acts as are necessary for the such a system involves “[e]nter[ing] into contractual relations on behalf of the procure a new back office services system for the E - ZPass system. Procuring and to oper ate the E - ZPass system, in particular, includes the authority to p. 8 8

fixture, facility or other item directly related to transportation”). construction, reconstruction, alteration, or maintenance of any highway, bridge, b uilding, plant, its ruling has not been appealed. See RSA 22 p. 8 8:1, VII (Supp. 2017) (defining a “project” as “any project[s],” the trial court ruled that this statute does not apply to the procurement at issue and other words, to weigh price more heavily than any other factor — for “state transportation Although RSA 228:4 (Supp. 2017) requires DOT to select the lowest responsible bidder — in 2

concurred. LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,

contract by using the best value method for evaluating competing bids. determined that DOT had the authority to procure the back office systems For all of the above reasons, we conclude that the trial court correctly

best value method to evaluate the competing bids. not only to procure the back office services system contract, but also to use the argument in light of our determination that DOT had the statutory authority powers doctrine. See N.H. C ONST. pt. I, art. 37. We necessarily reject this authority, the contract with Cubic is ultra vires and violates the separation of Conduent next argues that because DOT acted without statutory

more heavily than price. 2 agency, such as DOT, to use its subjective judgment and to weigh other factors subjective determinations. Together, RSA 21 - I:22 - a and :22 - b allow a state of vendors” to complete the requested work, which necessarily entails making allows a state agency, such as DOT, to make “judgments” on the “capabilities for the award, is so stated.” RSA 21 - I:22 - b. Thus, RSA 22 - I:22 - b expre ssly