Opinion
No. 30514-3-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-2-02101-5. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), Richard Mayer Berley, Attorney at Law, 2101 4th Ave Ste 1230, Seattle, WA 98121-2323.
Counsel for Respondent(s), Bruce L. Turcott, Ofc of The Aty General, 670 Woodland Square Loop SE, PO Box 40124, Olympia, WA 98504-0124.
World Relief appeals the CR 12(b)(6) dismissal of its action seeking an injunction and a declaratory judgment, establishing that the Department of Social and Health Services (DSHS) improperly excluded World Relief from contracts to provide job placement and other services to 'limited English pathway' (LEP) individuals. Because DSHS had already awarded the contracts, the trial court ruled that World Relief was entitled to neither damages nor an injunction. On appeal, World Relief argues that the contracts are renewable and that it seeks relief for future years only.
We affirm.
FACTS
Under Washington's WorkFirst program, DSHS enters into agreements with public and private entities to provide job placement and related services to immigrants and other LEP individuals. The appellants in this case are three non-profit charitable entities (collectively referred to here as World Relief). These organizations have previously contracted with DSHS to provide LEP services.
DSHS has statutory authority to choose LEP contractors through competitive bidding. RCW 74.08A.290. In May 2002, it initiated competitive bidding by issuing a 'Request for Qualifications' (RFQ); prospective contractors would provide LEP services beginning in October 2002.
DSHS allocated funding for only five contractors. Under the new contracts, the contractor receives a set payment each time a client attains a particular employment goal. The RFQ stated that the contracts would last one year and DSHS could renew them based on performance and available funding. DSHS has apparently renewed such annual contracts several times before implementing another RFQ or other mechanism awarding new contracts.
World Relief and six other organizations submitted proposals to DSHS. DSHS ranked the proposals using evaluators who did not know the bidders' identities. Although World Relief has consistently ranked among the highest performing agencies in placing LEP persons, it was not chosen as a contractor because its proposal received the sixth highest score.
World Relief submitted a protest, claiming that DSHS conducted an improper competitive procurement. DSHS reviewed World Relief's proposal and added three points to their score, but the outcome remained the same.
After DSHS had executed contracts with the successful bidders, World Relief sued, alleging that the 'blind' review process violated the WorkFirst statutes with respect to contract renewals for existing contractors who met or exceeded DSHS performance benchmarks. World Relief requested: (1) a declaratory judgment that DSHS acted arbitrarily and capriciously, (2) an injunction requiring DSHS to use certain data in evaluating contractors, (3) an order requiring DSHS to qualify World Relief for a contract, (4) payment for placements World Relief would have earned starting October 1, 2002, if it had been awarded a contract, and (5) a stay of DSHS's decision denying qualification of World Relief.
DSHS filed a CR 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted the motion.
ANALYSIS
We review de novo a CR 12(b)(6) dismissal. Reid v. Pierce County, 136 Wn.2d 195, 200-01, 961 P.2d 333 (1998). We will affirm only if it appears that, beyond a reasonable doubt, no facts exist that would justify recovery. Reid, 136 Wn.2d at 200-01. We accept the allegations in the complaint as true. Reid, 136 Wn.2d at 201.
When competitive bidding is used for public contracts, a disappointed bidder may seek injunctive relief but not damages. Peerless Food Prod., Inc. v. State, 119 Wn.2d 584, 596-97, 835 P.2d 1012 (1992); Dick Enter. v. Metro. King County, 83 Wn. App. 566, 569, 922 P.2d 184 (1996). But a disappointed bidder may not obtain injunctive relief after a contract is signed. BBG Group, LLC v. City of Monroe, 96 Wn. App. 517, 520, 982 P.2d 1176 (1999).
Unless a statute provides otherwise, a state agency may extend or renew a public contract without competitive bidding. Savage v. State, 75 Wn.2d 618, 621, 453 P.2d 613 (1969). '[A]n option to extend the duration of the contract, under the same terms and condition, for limited, specified periods does not create successive new contracts but, rather, merely extends the duration of a single existing contract.' Savage, 75 Wn.2d at 620 (citations omitted).
World Relief attempts to distinguish Dick Enterprises, BBG Group, and Peerless. It argues that Dick Enterprises and BBG Group involved public works contracts and any effective remedy to the disappointed bidders would have harmed taxpayers either through delay or additional costs. Here, according to World Relief, the contracts are for short term services, the contract payments are fixed and payable only after placements, and multiple contractors are used. Because of these differences, World Relief contends that an additional service contract will not increase taxpayer expense.
We are not persuaded. Although Dick Enterprises and BBG Group involved construction projects, Peerless dealt with an egg and dairy supply contract — ongoing services comparable to the present case. And none of the cases has distinguished between the type of contract awarded. Rather, the cases have emphasized two factors, (1) the public bidding statutes are for the taxpayers' protection, and (2) once the contract has been awarded, delay necessarily increases costs. Peerless, 119 Wn.2d at 596; Dick Enter., 83 Wn. App. at 569-70. We are satisfied that Peerless and Dick Enterprises control the outcome here. Because DSHS and the chosen contractors signed contracts before World Relief filed its action, World Relief has no claims for injunction or damages.
Nevertheless, World Relief maintains that it is entitled to a declaration that DSHS acted illegally in awarding the contracts and that its 'one-year contracts should not be routinely renewed for future fiscal years.' Appellant's Br. at 28.
World Relief has standing to bring a declaratory judgment action only if the interest sought to be protected is within the 'zone of interests' protected or regulated by the statute in question, and the challenged action has caused economic or other injury in fact. Save a Valuable Env't (SAVE) v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d 401 (1978); Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 713, 42 P.3d 394 (2002), vacated in part by 150 Wn.2d 791 (2004). Injury in fact exists if any member of the organization will be 'specifically and perceptibly harmed by the action.' SAVE, 89 Wn.2d at 866 (citing United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)).
Beneficiaries of World Relief's services, if they cannot obtain services from other contractors, have likely been harmed by World Relief's lost contract opportunity. But as DSHS asserts, World Relief does not represent public assistance recipients in this action. Nor has World Relief shown that any of its previous clients have been denied services from other contractors. Unlike in SAVE, where the organization represented private landowners, World Relief represents only its own interests. Thus, harm to its beneficiaries is irrelevant.
World Relief claims that DSHS has impeded its organizational functioning, but it does not explain how it has been impeded. Moreover, even if World Relief's organizational functioning has been harmed, such harm is not within the zone of interests the statutes protect. The legislature intended the WorkFirst program to focus on work for all recipients and on personal responsibility for recipients. RCW 74.08A.200, .400. World Relief fails to demonstrate that the statutes were intended to protect service contractors.
And competitive bidding statutes are designed to protect taxpayers from undue financial burden. Dick Enter., 83 Wn. App. at 570-71. The bidder's interest in a fair forum is only secondary. Dick Enter., 83 Wn. App. at 569. Thus, even if we look to the bidding statutes to delineate the zone of interest, World Relief does not fit within their zone of interests.
We conclude that the trial court did not err in dismissing World Relief's claims.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J.P.T., QUINN-BRINTNALL, C.J., concur.