OPINION OF THE COURT
(April 11, 2014)
Appellant, Tip Top Construction Corporation (“Tip Top”), appeals the Superior Court’s January 22,2014 Order denying
I. BACKGROUND
The facts relevant to the sole issue on appeal are largely undisputed. On June 26, 2013, the Government of the Virgin Islands issued an Invitation for Bids for the “Main Street Enhancement Project.” This project, which relies exclusively on federal highway funds, is intended to beautify and improve the Main Street area of Charlotte Amalie, St. Thomas, by, among other things, replаcing existing sidewalks and roadways and building new ones in their place, installing street furniture and historic street lamps, planting palm trees, creating new storm drains, and relocating and reconstructing utilities. Only two companies —Tip Top and Island Roads Corporation (“Island Roads”) — responded to the Invitation for Bids, with Tip Top submitting a bid of $8,441,108 and Island Roads responding with a bid of $10,377,620.
On October 31, 2013, the Evaluation Committee, consisting of seven voting and three non-voting members, reviewed both bids. The Evaluation Committee issued a November 8, 2013 Memorandum, which stated, in pertinent part, as follows:
The committee discussed the evaluation procеss and commenced reviewing the two (2) responses received and found Tip Top Construction (“Tip Top”) non-responsible for the proposed bid in the amount of Eight Million Four Hundred Forty-one Thousand One Hundred Eight Dollars and Zero Cents ($8,441,108.00) which was twenty percent (20%) lower than the Engineer’s Estimate of Ten Million Four Hundred Forty-four Thousand Five Hundred Seventy-five Dollars and Zero Cents ($10,444,575.00)[.] A large number of items submitted by Tip Top showed significant variance between their proposed bid and the Engineer’s Estimate making the bid mathematically unbalanced. Tip Top was also deemed non responsive for failure to sign their [Disadvantaged Business Enterprise (“DBE”)] Commitment Forms. The committee commenced the review of the one (1) remaining bid and determined that Island Roads Corporation was rendered responsive and responsible to the solicitation.
(J.A. 852.) Having rejected Tip Top’s bid, the Evaluation Committee recommended that the Government award the contract to Island Roads as the
Tip Top filed suit against the Government оn December 16, 2013, alleging that the Department of Property and Procurement improperly rejected its bid despite being the lowest responsive bidder. That same day, Tip Top filed a motion for a temporary restraining order (“TRO”) and preliminary injunction, which requested that the Superior Court enjoin the Government from entering into a contract with Island Roads. The Superior Court granted the request for a TRO in a December 19, 2013 Order, and scheduled a preliminary injunction hearing for December 30, 2013.
At the December 30, 2013 hearing, Tip Top presented testimony from two of its employees, Veronica Francis and Josеph Hollins. Afterwards, the Superior Court considered testimony from four of the Government’s witnesses, all of whom served on the Evaluation Committee. Nicole Roberts, who served as Chair of the Evaluation Committee, testified generally to the rules and procedures that govern the process for receiving and evaluating bids, and through her testimony the Government introduced into evidence, as Exhibit 6, a copy of the November 8, 2013 Memorandum with the Commissioner’s signature. Roberts testified that the Evaluation Committee’s decision had been unanimous, and, without providing any further elaboration, reiterated that Tip Top’s bid had been rеjected both as mathematically unbalanced and for lacking a signature on a subcontractor’s DBE form. Michael Farrington, a non-voting member, testified that he had discovered during the evaluation process that one of Tip Top’s subcontractors had not signed the DBE form, and that he therefore believed Tip Top’s submission had been incomplete, but did not testify to any other matters with respect to Tip Top’s bid.
The Superior Court, in a December 31, 2013 Order, extended the TRO to January 21, 2014. On January 22, 2014, the Superior Court declined to further extend the TRO, denied Tip Top’s motion for a preliminary injunction, and advised that an opinion explaining the reasons for the decision would follow. Tip Top filed its notice of appeal with this Court on January 27, 2014, and on January 31, 2014, moved this Court for an injunction pending appeal. This Court, in a January 31, 2014 Order, extended the TRO through February 14, 2014, in order to provide this Court with sufficient time to consider Tip Top’s motion, and for the Superior Court to issue its promised written opinion.
The Superior Court, in a February 7, 2014 Opinion, explained the reasons for its January 22, 2014 Order. In its Opinion, the Superior Court found that Tip Top satisfied three of the four requirements for issuance of a preliminary injunction, and rejected the Government’s argument that the absence of a subcontractor’s signature on a single form justified the rejection of Tip Top’s entire bid as unresponsive. Nevertheless, the Superior Court denied the preliminary injunction because it concluded that Tip Top had little likelihood of succeeding on the merits. Specifically, the Superior Court credited Benjamin’s oral testimony as to the additional reasons why the Evaluation Committee rejected Tip Top’s bid, and
II. DISCUSSION
A. Jurisdiction and Standard of Review
This Court has jurisdiction over “[ijnterlocutory orders of the Superior Court of the Virgin Islands ... granting, continuing, modifying, refusing or dissolving injunctions.” V.I. Code Ann. tit. 4, § 33(b)(1). Additionally, Tip Top filed a timely notice of appeal on January 27, 2014. See 4 V.I.C. § 33(d)(5); First Am. Dev. Group/Carib, LLC v. WestLB AG,
B. Likelihood of Success on the Merits
In deciding whether to grant a preliminary injunction, the Superior Court must consider four factors:
(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving рarty; and (4) whether granting the preliminary relief will be in the public interest.
Yusuf v. Hamed,
Before considering Tip Top’s likelihood of success on the merits, we must determine the appropriate standard through which we review Tip Top’s bid protest. In its February 7, 2014 Opinion, the Superior Court, relying on both federal and local case law, heavily emphasized that judicial review of procurement decisions are “extremely limited in scope,” Princeton Combustion Research Labs, Inc. v. McCarthy,
We note that, in its complaint, Tiр Top seeks two different forms of non-equitable relief. Specifically, Tip Top requests that the Superior Court
The same is not true, however, for Tip Top’s claim that the Government rejected its bid in violation of pertinent statutes and regulations. Importantly, the Superior Court overlooked that the arbitrary or irrational standard applies only with respect to reviewing the factual basis for the procuring agency’s decision to award a contract to a particular vendor, and does not apply when determining questions of law. See Banknote Corp. of Am., Inc. v. United States,
Applying the correct legal standard, we conclude that Tip Top made a sufficient showing that it is likely to prevail on its claim that the Government rejected its bid in violation of pertinent regulations. In its February 7, 2014 Opinion, the Superior Court concluded that the procurement process for the Project was governed by Title 23 of the United States Code as well as Subpart A of Part 635 of Subchapter G of Chapter 1 of Title 23 of the Code of Federal Regulations, by virtue of the fact that the Government is relying on federal highway funds to pаy for all of the construction.
(c) Following the opening of bids, the STD6 shall examine the unit bid prices of the apparent low bid for reasonable сonformance with the engineer’s estimated prices. A bid with extreme variations from the engineer’s estimate, or where obvious unbalancing of unit prices has occurred, shall be thoroughly evaluated.
*735 (d) Where obvious unbalanced bid items exist, the STD’s decision to award or reject a bid shall be supported by written justification. A bid found to be mathematically unbalanced, but not found to be materially unbalanced, may be awarded.
23 C.F.R. § 635.114. A bid is mathematically unbalanced if it “contain[sj lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder’s anticipated profit, overhead costs, and other indirect costs,” while a bid is materially unbalanced if it creates “a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost to the Federal Government.” 23 C.F.R. § 635.102.
In its November 8, 2013 Memorandum awarding the contract to Island Roads, the Evaluation Committee stated that it received an application from Tip Top “which was twenty percent (20%) lower than the Engineer’s Estimate of Ten Million Four Hundred Forty-four Thousand Five Hundred Seventy-five Dollars and Zero Cents ($10,444,575.00).” (J.A. 852.) Nevertheless, the Evaluation Committee concluded that Tip Top’s bid should be rejected simply because “[a] large number of items submitted by Tip Top showed significant variance between their proposed bid and the Engineer’s Estimate making the bid mathematically unbalanced,” without providing any further elaboration. (Id.)
As noted above, the Superior Court indicated that the pertinent federal regulations require that unbalanced bids be “thoroughly evaluated,” 23 C.F.R. § 635.114(c), and that when a mathematically — but not materially — unbalanced bid is submitted, any decision to reject the bid “shall be supported by written justification.” 23 C.F.R. § 635.114(d) (emphasis added). The Superior Court concluded that the Evaluation Committee’s statement, in a single sentence and without any other analysis, that Tip Top had submitted a mathematically unbalanced bid was a sufficient “written justification.” While there do not appear to be any judicial decisions interpreting the phrase “written justification” found in section 635.114(d), we note that section 635.114(c) mandates that all unbalanced bids be “thoroughly evaluated,” and that section 635.114(d) permits an agency to award a mathematically unbalanced bid. Additionally, advisory opinions issued by the Comptroller General of the United States —. who may adjudicate bid protests under federal procurement law, 31 U.S.C. § 3554(а)(1) •— provide that mathematical
Likewise, the Superior Court’s decision to credit Benjamin’s testimony cannot remedy the deficiencies with the November 8, 2013 Memorandum. As noted above, section 635.114(d) requires a written justification, and the Superior Court cited to no legal authority — and the Government has provided none in its brief — to support the proposition that an agency may supplement its written justification with the oral testimony of a single member. Significantly, the Evaluation Committee consists of nine members, some of whom are non-voting members, and Benjamin’s name and signature do not appear on the pоrtion of the November 8,2013 Memorandum identifying which members approved of the document. But even if Benjamin participated in the Evaluation Committee’s evaluations, courts have repeatedly held that the post hoc observations of a single member of a deliberative body should ordinarily
III. CONCLUSION
As the arbitrary and irrational legal standard only applies to a procuring agency’s factual determinations, the Government is not entitled to any special deference with respect to legal questions, such as whеther it complied with pertinent statutes and regulations. Because we conclude that Tip Top has shown that it is likely to succeed on its claim that the Government summarily rejected its bid without a sufficient written justification in violation of section 635.114(d) of title 23 of the Code of Federal Regulations, and since the Government has not challenged the Superior Court’s holding that the remaining three factors all favor the
Notes
Although the copy of the November 8,2013 Memorandum that the Government introduced into evidence at the Superior Court’s December 30, 2013 hearing as Exhibit 6 contains the Commissioner’s signature, it does not explicitly specify that the Commissioner approved of the decision. Nevertheless, since the Government, by its November 21,2013 letter, informed Tip Top that its bid had been rejected, and the Government has not, in the proceedings before the Superior Court or this Court, argued that it does not intend to enter into a contract with Island Roads, we assume that the Commissioner’s signature represents approval of the Evaluation Committee’s decision.
In its brief, the Gоvernment argues — for the first time on appeal — that Tip Top purportedly lacks “standing” to bring this appeal, or to even have filed suit before the Superior Court, and requests that this Court not only dismiss this appeal, but also Tip Top’s pending Superior Court complaint. Specifically, the Government contends that when federal highway funds are used to fund a project, the pertinent federal regulations require that the Federal Highway Administration concur in the non-award of a contract to the lowest possible bidder, and that the record contains no evidence that this agency issued a final decision on the matter.
Although the Government frames its argument as a standing issue, it is actually raising a ripeness argument, in that it challenges the timing of Tip Top’s lawsuit, as opposed to Tip Top’s suitability as a plaintiff. See Armstrong World Indus. v. Adams,
As this Court noted in its February 14,2014 Order, it is not clear whether the Superior Court applied a “sequential injunction test,” in which a movant must prove all four preliminary injunction factors, or the “sliding-scale test,” where the four factors are balanced and weighed and an injunction may be granted even if all four factors are not met. Tip-Top,
In its appellate brief, the Govеrnment argues that, to obtain a preliminary injunction, Tip Top was required to prove its factual allegations by clear and convincing evidence, rather than by a preponderance of the evidence. However, because all the facts material to our analysis of the likelihood of success factor are undisputed — such as the fact that the Project is funded by federal highway funds — we decline to consider, as part of this appeal, whether Tip Top ’ s motion for a preliminary inj unction is subject to the preponderance of the evidence standard or the clear and convincing evidence standard.
In its appellate brief, the Government, despite taking the position before the Superior Court that the pertinent federal regulations apply, argues, for the first time on appeal, that various provisions of local Virgin Islands procurement law and regulations support its rejection of Tip Top’s bid. However, it is undisputed that the Main Street Enhancement Project is funded by federal highway funds. See 23 U.S.C. § 120(g) (“the Federal share payable on account of any project under this title in the Virgin Islands ... shall be 100 per centum of the total cost of the project”). Consequently, the Government must therefore comply with federal law, even if it imposes greater or different requirements than local law.
For purposes of this regulation, the term “STD” refers to a state or territorial “department, commission, board or official. . . charged by its laws with the responsibility for highway construction.” 23 C.F.R. § 635.102.
In its appellate brief, the Government contends that the Commissioner of Property and Procurement possesses final authority to award a particular contract, and that the Evaluation Committee’s decision simply represents a non-binding recommendation. (Appellee’s Br. 14.) However, section 635.114(d), by its оwn terms, requires a written justification for rejecting a mathematically unbalanced bid, and the Commissioner did not provide any additional written reasons for rejecting Tip Top’s bid and awarding the contract to Island Roads. Therefore, to the extent the Commissioner accepted the Evaluation Committee’s recomendation for reasons different from those set forth in the Evaluation Committee’s November 8, 2013 Memorandum, the Commissioner’s failure to set forth those reasons in writing likewise violates section 635.114(d).
The dangers of relying solely on Benjamin’s testimony to supplement the November 8, 2013 Memorandum is particularly pronounced in this case. As noted earlier, four members of the Evaluation Committee testified at the December 30, 2013 hearing, and all provided different reasons for why Tip Top’s bid had been rejected. Roberts — the Committee Chair — testified to precisely the contents of the November 8, 2013 Memorandum: that Tip Top submitted a mathematically unbalanced bid, and failed to include a required signature. Farrington, a non-voting member, testified exclusively to the missing signature, without attributing the rejection to mathematical unbalance or any other reason. Benjamin, however, testified that the Evaluation Committee rejected Tip Top’s bid because it was concerned that
When, as here, a movant for a preliminary injunction sets forth two separate theories of relief, “[i]t is... not necessary for the Court to apply the ‘likelihood of success on the merits’ test to each of [the] theories, for satisfaction of that requirement as to any one theory is enough to support the injunction (provided the other requirements for injunctive relief are also satisfied).” Instrumentalist Co. v. Marine Corps League,
In its brief and during oral argument, Tip Top requested that this Court remand this matter to the Superior Court either with instructions that it direct the Government to award it the contract, or to at least provide the Superior Court with specific guidance as to what law to apply with respect to that issue. However, since we exercise jurisdiction over this interlocutory appeal solely pursuant to 4 V.I.C. § 33(b)(1), which authorizes immediate appeals of orders denying a preliminary injunction, we decline to comment on the merits of any of the other issues currently being considered by the Superior Court. See Gov’t of the V.I. v. Seafarers Int’l Union,