No. SCAP-12-0000789, Thursday, December 19, 2013, 8:45 a.m.

LLOYD Y. ASATO, Petitioner/Plaintiff-Appellee/Cross-Appellant, vs. PROCUREMENT POLICY BOARD, STATE OF HAWAI`I, Respondent/Defendant-Appellant/Cross-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

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

Arthur Y. Park and John C. McLaren of Park & Park

Attorney for Respondent/Defendant-Appellant/Cross-Appellee:

Marissa H.I. Luning, Deputy Solicitor General

NOTE: Order granting Application for Transfer, filed 08/01/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

The Procurement Policy Board of the State of Hawai`i and Lloyd Y. Asato filed cross-appeals from the Circuit Court of the First Circuit’s August 15, 2012 judgment, entered pursuant to its June 8, 2012 order granting Asato’s motion for summary judgment and denying the Board’s cross-motion for summary judgment.

This appeal arises out of a suit filed by Asato against the Board, in which Asato sought a declaration invalidating Hawai`i Administrative Rule (HAR) § 3-122-66, which provides alternative courses of action for procurement when fewer than the three qualified persons required by Hawai`i Revised Statutes § 103D-304(g) are available to be recommended for professional services contracts with the State. The circuit court granted Asato’s motion for summary judgment and denied the Board’s cross-motion for summary judgment, holding, inter alia, that HAR § 3-122-66 is invalid.

The Board raises the following three points of error on appeal: (1) the circuit court erred in concluding that Asato had standing under HRS § 91-7 and in determining that Asato had suffered an injury-in-fact; (2) the circuit court erred in holding that HAR § 3-122-66 was invalid as contrary to or conflicting with HRS § 103D-304(g); and (3) the circuit court erred in granting Asato’s request for attorneys’ fees based on the private attorney general doctrine.

Asato argues in his cross-appeal that the circuit court committed an error of law and/or abused its discretion: (1) in refusing to declare as a matter of law that HAR § 3-122-66 has never been valid and has always been ultra vires and void ab initio; (2) by refusing to declare that every government contract issued under the invalid authority of HAR § 3-122-66 is void ab initio; and (3) by refusing to preliminarily and permanently enjoin the use of HAR § 3-122-66 in the procurement of professional services under HRS § 103D-304. Asato also raises the following three additional arguments in his cross-appeal: (1) the attorney general and the Board improperly condoned and participated in the enactment and perpetuation of HAR § 3-122-66; (2) the attorney general and the Board have disregarded and violated their public trust responsibilities in HRS chapter 103D; and (3) the attorney general and the Board should be judicially barred or estopped from asserting the issues in its appeal.