*1 163 10(b)(2) (1999)11 pursuant HRAP Rule IV. CONCLUSION requesting any transcripts she was (1) foregoing, on the Based we dismiss the prepared appeal connection with her 24, cross-appeal from the March 20, from the 2000 order. Ditto 28, September judgment 2000 order 2000 thereby transcripts deemed the of the No- in appeal No. 23851 and affirm the No- 14, hearing unnecessary vember 2000 denying vember 2000 order Ditto’s mo- purposes appeal. our review tion set September aside amend the and/or 10(b)(2). HRAP Rule judgment, subject 2000 which is appeal No. 23962. However, without the November 2000 transcript, simply not have we do a sufficient

basis in the record to cir- conclude that the

cuit court by denying abused its discretion ground

her of newly motion on discover- Lepere,

ed evidence. Hawai'i 77 at 887 1032; Bettencourt, P.2d at see Bettencourt v. 80 P.3d 984 909 P.2d 559 LEWA, INC., Petitioner-Appellant, NIHI (affirming imposed by the sanctions the fami- because, ly appellant court where the failed transcripts, include the appel relevant DEPARTMENT OF BUDGET AND FIS late court no upon has basis which to review SERVICES, City County CAL error); appellant’s point see also Trad Honolulu, Respondent-Appellee. Cochran, Hotel, ewinds Inc. Haw.App. (1990) (court No. 23047. unable ap to review errors asserted where Supreme Court of Hawai'i. pellant provide has failed to transcript of below); proceedings Bldg. Union Materials Dec.

Corp. Corp., Haw.App. v. Kakaako

151-52, (“appellant

must all include record of the evidence might

on which lower have based done, findings if this is not the lower affirmed”). example,

court must For we letter, July

do not know whether the motion, gravamen of Ditto’s was offered and, so,

into at the evidence wheth-

er the circuit court admitted letter

found it Nor to be credible. do we know testify regard-

whether Smith was called to

ing July his statements in the 2000 letter any

or whether Ditto other offered evidence We, therefore, support of her motion.

leave undisturbed circuit court’s Novem denying

ber Ditto’s HRCP 60(b) Lepere,

Rule motion. See at 1031; Bldg. at Materi Union Corp., Haw.App.

als at

88; Hotel, Haw.App. Tradewinds

799 P.2d at 66. 10(b)(2)provides pertinent part

11. HRAP Rule file certificate that effect with the clerk appellant unnecessary that have ”[i]f the deems appealed of the court from....” transcripts prepared, appellant shall[] *2 F. E. and Marc E. Rousseau

David Banks (of Fleming Wright), & on the Cades Schutte briefs, Honolulu, petitioner-appellant. for Cynthia Nojima, Deputy Corporation M. Counsel, briefs, Honolulu, respon- on the dent-appellee.

MOON, LEVINSON, C.J., NAKAYAMA,JJ., Judge and Circuit BLONDIN, Vacancy. Assigned Reason of MOON, Opinion of Court C.J. (Nihi Lewa, Petitioner-appellant Nihi Inc. Lewa) judicial seeks review the December 1999 dismissal order the Office Hearings, Department Administrative Affairs, Commerce Consumer which de- Nihi nied Lewa’s review. Nihi Lewa contends that the hear- dismissing officer erred untimely for review as under Revised (HRS) (Supp.1999)1 Statutes (2) finding jurisdiction that it lacked over the matter Nihi Lewa failed to had request directly file its with the Office of office). Hearings (hearings Administrative below, For the we affirm reasons discussed the order of dismissal.

I. BACKGROUND Department Bud- Respondent-appellee Services, City get County and Fiscal (the purchasing agency) apparently Honolulu job advertised number contract num- F-96730, Waipahu Pump ber Wastewater (the contract) Station Modifications bid. On October the sealed bids opened. submitted for the contract were (RCI) Environmental, Inc. RCI submitted $5,027,645.50. the lowest “basic bid” at Nihi Lewa submitted the second “basic lowest $5,364,835.00. bid” at 2, 1999, Nihi On November Lewa filed a Jr., Roy Amemiya, protest with K. the di- (director). the purchasing agency rector of Therein, complained Nihi Lewa that the val- plumbing work was than greater ue of RCI’s that, percent one of its total bid and there- fore, required RCI “C-37 li- list a plumber.” censed Because RCI failed to list Quoted See Section III. Discussion. infra. plumber, requests such a Lewa Nihi asserted that be made “within seven rejected. RCI’s bid should have been determi- of the issuance written Cf. Trucking Okada Ltd. v. Board Water specifying nation” rather than either the 450, 460-62, Supply, 97 Hawai'i or date of to be the *3 (2002) that, (explaining 83-85 pursuant days time from which seven the (1993), general HRS 444-9 contractor begins run. may perform specialty plumbing not work (Underscored (Bold emphasis original.) license). proper without a (Citations omitted.) emphasis letter, 23, 1999, In a dated November the Nihi December Lewa filed a denied protest. director Nihi Lewa’s The motion set aside the dismissal and re- was, mail, letter sent via certified return re- quested By hearing. a new letter dated ceipt requested, envelope post- the 23, 1999, hearings December the officer de- marked November 1999. Nihi Lewa’s ground nied the motion on the hear- the president signed the received denial jurisdiction office lacked the mat- over 2,1999. letter on December ter, “it stating: questionable whether this On December Nihi Lewa hand- jurisdiction your now has to hear cur- forum request delivered for. administrative already rent in a motion case that has been (the request) to hearing purchasing agen the (Emphasis original.) dismissed.” On De- cy’s By director. letter dated December applica- cember Nihi Lewa filed agency purchasing the transmitted the judicial tion for review with this court. request office, hearings which was undisputed the contract was on pre-hear December 1999. A eventually awarded to RCI. ing conference was scheduled for December and the was scheduled for II. STANDARD OF REVIEW 21,1999. Approximately forty-five minutes before reviewing When decisions of an adminis- pre-hearing conference was scheduled to hearings trative Ha- upon officer based commence, hearings officer Code, dismissed ap- Public waii’s Procurement Nihi request Lewa’s for administrative re- pellate governed by standard of review is First, grounds. view hearings on two 103D-710(e) request 103D-710(e) determined that had been provides: sent to the incorrect office: Upon may review of record the mandatory language in the statute is [The] affirm decision offi- time, place, clear as to the manner of pursuant cer issued to section 103D-709 requests for administrative review- or remand the ease with instructions for attempted by such as [Nihi Lewa]. proceedings; further or it reverse record, however, equally clear that modify or and order sub- decision complied [Nihi Lewa] has not rights may prejudiced have been stantial requirement requests that such “shall be findings, because the con- directly made to the office of administra- clusions, decisions, or orders are: healings tive [.] ” (1) In or statu- violation of constitutional Second, (Emphasis original.) he conclud- tory provisions; untimely: ed that the (2) statutory authority In excess of the within [T]he made jurisdiction procure- or chief required by that seven calendar stat- purchasing ment officer or head [(HRS 103D-712(a)) ]. ute The record agency; agency] [purchasing is- reflects upon procedure; Made unlawful denying [Nihi Lewa’s] sued its law; .by Affected other error of yet Clearly made erroneous view of reli- was not until able, again, probative, and evi-

later on December 1999. Once substantial record; requiring on the or the statute is clear dence whole (rev’d ed.1975). turn, (6) Arbitrary, primary defini capricious, or charac- sending “the out of discretion or clear- tion of “issue” is act terized abuse forth; putting promulgation; distribution.” ly exercise of discretion. unwarranted general definition of This Furthermore, relevant comports meaning of term also conclusions law are reviewable under technically term it in the law. See used (4); (1), (2), questions subsections (6th 1990) Dictionary Law ed. Black’s procedural regarding defects under sub- forth; (Giving as its first definition: “To send (3); fact findings section under sub- emit; as, promulgate; an officer issues (5); Hearings Officer’s section court.”). orders, process issues from under exercise discretion subsection *4 (6). reviewing will Accordingly, a §HRS establishes the Hearings finding a of reverse Officer’s triggering “date as the mecha of issuance” finding if it that such fact concludes running on nism that the clock starts clearly in view of the reli- erroneous time for administrative able, probative, and substantial evidence However, precise review. of the absence the whole On the other on record. definition, unclear it is as to when written hand, Hearings Officer’s conclusions determination be considered have freely are of law reviewable. forth, promulgated or distribute been “sent reasonably ed.” of issuance could Group, L.P. v. The date Foods 89 Southern 1033, to mean which be understood the date on 1042 (brackets omitted). written determination finalized citations adopted, the date which it is rendered

III. DISCUSSION public, date on it is or the which mailed to ambiguity, parties. the affected Given this 103D-712(a) provides that “[r]e- aids in appropriate to resort to extrinsic quests for review under sec- administrative give order effect to the to ascertain and directly tion 103D-709 shall be made Legislature. of the This does not intention of the de- office of mean, that, however, construing disputed partment of commerce and consumer affairs term, lightly disregard the we should ordi within seven calendar nary meaning Keliip to it. See attaches under a mitten determination section 221, Wilson, 217, uleole 85 Hawai'i 941 (Em- 103D-310, 103D-701, or 103D-702.” (“Words 300, given P.2d 304 their added.) phases Nihi Lewa contends meaning wording in common unless some agency’s “the ‘issuance’ date of the decision ” interpretation.’ ‘requires statute different by the Legislature [is] intended the date of Silva, (quoting 78 Hawai'i Saranillio receipt.” (Emphasis purchas- The 685, (1995)) (citing 694 P.2d Ross v. ing agency asserts that the date “issuance” Ltd., (Hawai'i), Hotel Co. 76 Hawai'i meaning, should be construed at the lat- Stouffer (1994)) (em 461, 879 P.2d 1044-45 est, date on decision was added)). we, phasis guise Nor can under the agree purchasing mailed.2 We statutory applying standard rules of con agency. struction, Legisla thwart intent of Generally, required this court to con- ture. according the words strue of a statute that, signifieation[.]” when “their most known and usual is well-settled faced (1993). dictionary interpreting ambiguous § 1-14 A with the task of stat standard utory language, definition term “issuance” notes that court should “accord given issuing.” persuasive weight term refers to “the act of The the'construction meaning by College Dictionary House 710 words and indefinite Random of broad Specifically, purchasing agency argues: The record that the made. indicates postmarked on The decision when it was "issued" was made latest, latest, Therefore, signed final and or at decision was the decision "issued” Certainly, day. "issued" when it was sent out. on that time, finally point in the decision end, delivery process agency charged responsibility than the carrying out the mandate of the it expressly utilized the term “issuance” rath question, palpably unless the construction is applicable the term “receipt.” er than Hamada, erroneous.” Haw. Aio v. provision of the Bar American Association’s (citing Treloar Model Procurement for State and Lo Code Co., Walberg v. Swinerton & Haw. (Model Code) (February cal Governments (1982)); In re see also 1979) specifically suggests relevant Applications, Use Water Permit period time be measured the date 97, 144-45 & n. n. 44 456-57 & 9-506(2)(b) (“the “receipt.” Code Model Supreme The United States Court person aggrieved shall file an within acknowledged in Skelly as much Co. v. Oil decision”) (brack [seven] Co., Phillips Petroleum 339 U.S. added). original) (emphasis ets The Ha (1950), S.Ct. 94 L.Ed. when it based, wai'i Public Procurement Code is recognized that “the Commission has consid part, on the Model Code. See Stand. Comm. discretion erable administrative to decide S8-93, Journal, Rep. in 1993 Senate at 39. fairly when have deemed to However, merely replicating instead of Skelly 339 U.S. at issued.”3 Oil Code, language from the as it had Model *5 876. S.Ct. elsewhere, Legislature done the a drafted case, hearings In the instant the substantively different that makes utilized November 1999—the of the date operative the date of issuance the date. triggering denial the for cal- letter—as date upon Based the differences between the view, culating period. prescribed the In our 103D-712, § Model Code and HRS one construing of “issuance” mean the date the reasonably Legislature infer that the consid letter palpably denial is erroneous inasmuch establishing of ered the date as an prescribed period conceivably the as could mechanism, appropriate triggering but ulti expire before a is written determination rejected mately this alternative favor of however, public. point, made More to the is the of issuance. date be, such a pursuant construction would Co., Skelly reasoning to the Oil unconstitu- prerogative It was within the of the Thus, law, tional. as a matter of the date of filing time Legislature decide that the for interpreted meaning cannot issuance as request for review date on which written the determination begin running than later. The sooner rather by signed the director. overall framework of Hawai'i Public Pro the Legislature the curement Code indicates that appeal, Lewa Nihi maintains process expeditious intended to create an for merely synonym “receipt.” “issuance” is disputes awarding of resolving over the con disagree. concepts designated The two We Corp. tracts. See CARL receive) (ie., by these to send terms and to (“the [Procure distinct, denoting beginning the and end are filing are, Code both shortens deadlines ment] delivery process. points of the in We protests applications for review stead, and ex persuaded by the purchasing agency’s pedites hearings pro the administrative interpretation that “issuance” the date means cess”). circumstances, public Under most mailing, by postmark evidenced the projects proceed cannot while a interpretation date. Such is consistent with 103D-709(e) (1993) pending. See HRS ordinary of the term more meaning (“No ... an accurately shall be taken on award of Legislature’s reflects the intent. action history proceeding pending[.]”). supports a contract while a the conclu disputes time the award of con Legislature sion intended the Given that over necessarily delays rather filing beginning, to start at the result tracts will Secretary copies of the We note Rules of mails or delivers that the Commission’s own text) (full provided parties attorneys or their Practice and that: "In com- order Procedure record, copies public, any period involving puting time or makes such whichev- Commission, day Skelly by Oil er be the earlier.” U.S. at issuance of an order day shall be the 676 n. S.Ct. 876. the Office office, in and, hearings direct rather than given works will affect 103D-712(a). expe- of HRS Legislature expressed clear intent contravention turn, disputes hearings office did not receive process dite law, resolved, spirit of the reason and until December “[t]he legislature the cause which induced of Nihi Lewa’s the untimeliness appears that it,” (1993), support the § 1-15 to enact on which request has less to do with date agency’s of the term purchasing construction letter and Nihi Lewa received denial which a writ- “issuance” to mean the date on com- with Nihi Lewa’s failure to more to do mailed, as evidenced ten determination is filing the statute. ply with the mandate of mailing postmark. Using the date of Clearly, had the December triggering creates an easi- mechanism directly hearings office been filed ly way establishing verifiable purchasing agency, it would instead of (i.e., counting post- from the deadline view, timely. construing In our have been mark), (2) delay potential for reduces the mailing” to mean “date of does not “issuance” party authorized to might arise merely or unfair result lead to an absurd is unavail- the written determination receive interpretation reduced the such an made, delivery when actual able possible in which it was amount of time harmony provisions legis- with other easily have oversight that could correct See, e.g., Hawaii Administra- lative scheme. been avoided. (providing that service tive Rules 3-126-74 foregoing, we hold that the Based on officer’s decision “shall be used in HRS 103D- term “issuance” as complete upon its deemed 712(a) mailing, means the date of as evi- address”). party’s last known Nihi postmark. Because denced *6 Moreover, is well-settled request by prop- Lewa’s was not received in “[statutory construction dictates that an days until after the December 6 er office two terpreting court not fashion a con deadline, untimely. request was Conse- statutory text that ... creates struction of not address Nihi Lewa’s quently, we need unjust Dines v. absurd result.” Pacific appeal. contention on second Ltd., Ins. (citation omitted). The facts IV. CONCLUSION construing case do not indicate that of this to mean the date of the term “issuance” above, affirm the hear- light of the we by postmark, leads mailing, as evidenced ings officer’s December 1999 order unjust to an absurd or result. Lee, Agsalud dismissal. See (1983) (“ ‘Where the clearly re The record this ease below is correct it must be affirmed decision denying Nihi Lewa’s flects letter though by appellate the lower tri- protest 1999 and was dated November ” gave wrong for its action.’ bunal reason 29, 1999, mailed on November as evidenced (Citations omitted.)). and internal brackets request by postmark. Nihi Lewa’s hearing required for an administrative ACOBA, J., dissents. hearings office no later than be filed with the 6,1999. The record indicates December also ACOBA, Dissenting Opinion of J. copy received a of the denial that Nihi Lewa days provision I hold that the in Hawaii 1999—four be would letter on December 103D-712(a)1 (HRS) § request for review would have been Revised Statutes fore the (Supp.1999) the Hawaii Public Procure- Although request Nihi written due. Lewa’s Code, requires request that a on December it ment was hand-delivered of the purchasing agency for administrative review decision presented to the 103D-712(a) and consumer affairs with- ment of commerce HRS states days calendar of the issuance of a seven [r]equests for administrative review under sec- under 103D- directly (cid:127)written determination section be made tion 103D-709 shall 310, 103D-701, depart- or 103D-702. office of administrative purchasing of a agency regarding head est bid on the in the contract amount of $5,027,645.50. directly5’ Appellant a contract award “shall be made submitted the sec- $5,364,835.00. ond with Office lowest bid of Hearings, of Administrative Department of Commerce and Consumer Appellant On November filed (Office Affairs, State of Adminis Hawai‘i Appellee’s director.2 The root Hearings), directory trative not man Appellant’s complaint was that the value of datory. plumbing greater work was than one percent by of the total submitted RCI bid I requirement would also hold that the and, thus, required listing specialty requests all for ad- plumbing C-37 generally contractor. See ministrative review be filed “within seven Trucking Supply, Okada Co. Bd. Water of the issuance aof written 450, 460-61, 83-84 purchasing decision” the director of the that, (explaining pursuant agency must be construed to mean seven general engineering contractor receipt after decision work). may perform speciality plumbing protesting bidder in order to avoid unrea- listed, Without Appellant contractor sonable, unjust, For, and absurd result. rejected. believed RCI’s bid should be by the measured date director’s decision issued, Respondent-Appellee Depart- Appellant’s presi- December Services, Budget City ment of and Fiscal Appellee’s dent letter di- County (Appellee) argues, of Honolulu rector denying Appellant’s protest, return requesting time allowed for a review run receipt requested. The letter was dated No- decision, before a bidder receives postmarked vember but 29,1999.3 Similarly, adopting this case. postmark as evidenced as the 3,1999, day On December after receiv- one issuance, majori- date of the decision’s as the ing letter, denial hand deliv- holds, unreasonable, ty would also invite un- ered a for an administrative

just, absurd results. director, (request) Appéllee’s as the head Petitioner-Appellant case was mailed to Nihi purchasing agency.4 By dated letter Lewa, (Appellant) Inc. return re- 6, 1999, Appellee transmitted seven-day quested, evidencing peri- Hear- to the Office of Administrative *7 Appellant request od for for to file its review ings. request office the That receipt. ran from the time of 8, 1999. appears December from the rec- ord parties filing that all were aware of this

I. prejudice and no a occurred as result the appeal. timing of the relatively The facts of this case are straightforward. job A Appellee hearing advertised before the Office of Administra- F-96730, tive Hearings number contract number was scheduled for December Waipahu Pump Forty-five pre- a Wastewater Station Modifi- 1999. minutes before (contract) hearing cations bid. On October conference scheduled com- was 28, 1999, mence, the opened. hearings sealed bids were RCI the the officer dismissed Inc.(RCI) First, request grounds. hearings Environmental the submitted low- on two 103D-701(a) to, however, (Supp.1999), envelope § 2. Pursuant to HRS ord cited indicates that the offeror, bidder, "[a]ny prospective postmarked actual or November 1999. aggrieved in connection with contractor who is may pro- the solicitation or award contract (1993), §HRS a "bid- 4.Pursuant 103D-709 desig- procurement test to chief der, offeror, governmental body contractor or specified nee Such a as the solicitation.” aggrieved by pro- determination the chief writing must be "in within five submitted officer, agency, purchasing curement head of a working days posting after award of [an] designee” may appeal or a hear- "[t]he several contract[.]" appointed by officers of the director commerce and consumer affairs” for review. Appellee answering its brief contends in that hearings twenty- envelope containing Such "shall commence within director's decision postmarked request.” The one rec- Hearings, dismissing Appellant’s request for request had been officer determined Appel- to review an administrative wrong sent office. Appellant’s protest. lee’s denial of language mandatory in [HRS [The] time, 103D-712(a)] is clear as to the 21, 1999, Appellant filed a On December place, filing requests manner motion to the dismissal re- set aside that at- review—such as administrative quested hearing. By a new letter dated record, [Appellant], The tempted by the hearings December officer de- [Appel- however, equally clear that ground nied this on the motion complied require- with the not lant] has Hearings ju- Office of Administrative lacked requests “shall be made ment that such Appellant risdiction. On directly to the office administrative judicial application filed an review with hearings [Appellant] fact that filed The [.] undisputed the con- this court.5 It [Appellee] request its does eventually tract was awarded RCI. requirements threshold meet the juris- does not confer II. office of hear- diction on.the appeal, argues filing ings. authority by of this office is set The Hearings Office of Administrative enlarged can neither be nor statute and jurisdictional requirement, and not a the mis- independent by receipt, diminished did take it with not result transmittal, request by another of such party. Secondly, prejudice the other county government. or state office or a “issuance!,]” term Appellant argues that the (Boldfaced (Underscored emphasis 103D-712(a), as used in HRS means that Second, emphasis original.) he ruled statutorily seven-day period required request had was late because the the date the upon commences decision been then seven calendar filed more received, date of the and not the decision letter, i.e., after “issuance” of denial letter, ruled officer. the letter. [pur- making on the [E]ven III. chasing agency] was to be construed to be office, making it on respect Appellant’s point, With first same jurisdiction agency’s not made within seven cal- noted that an days required statutory power strictly endar al creation (HRS 103D-712(a)) agency’s [ ]. record re- authority is limited the terms [purchasing agency] Ogle County issued governing flects that statute. See denying [Appellant’s] pro- Bd., Ill.App.3d Bd. v. Pollution Control [Ap- yet N.E.2d test on November Ill.Dec. *8 pellant’s] request denied, 563, was not 10 appeal made until 163 Ill.2d 212 Ill.Dec. days 3, (1995). Once Consequently, later on 1999. 657 N.E.2d 625 again, requiring agency statutory is clear that the statute acts outside its which requests authority jurisdiction. be made “within cal- acting such seven without Bd., Ogle days County appellate the issuance of a written In the Illinois endar id. .of specifying explained ei- “jurisdiction” rather than that three determination” has re- aspects ther the date of or date of administrative law in the context: ceipt from to be the time which seven (i.e., personal jurisdiction the agency’s begins run. calendar to authority parties intervenors over (Boldfaced (Underscored emphases proceedings); subject- involved in the omitted.) (Citations (¿a, emphasis original.) jurisdiction agency’s pow- matter general An was filed er over the class cases to order of dismissal on December belongs); particular the Office of case 1999 Administrative 103D-712(b), ju- “[requests § after of a written decision the issuance Under HRS hearings under section 103D-710 shall be dicial review under section 103D-709.” supreme court within filed in the ten

171 agency’s scope authority directory under its that shall” was in a fash utilized [enabling] ion, statute. following id. at 928 P.2d at adopted: test was (citing People Bus. & 'l Pub. Prof Comm’n, v. Interest Illinois Commerce 136 “Where giv the directions statute are 144 Ill.2d Ill.Dec. 693 555 N.E.2d merely proper en with a vieiv to the (1989)). jurisdictional aspect third in business, orderly conduct or relate to statutory volving authority has been defined matter, generally some immaterial it is ability agency adjudicate as the to regarded directory.” as Miller v. particular enter a it. before See id. Okla.Crim. (App. 1951) (citation quotation marks omit that contends the third adminis ted). Furthermore, directory “a statute is jurisdictional aspect trative not satisfied mandatory provisions rather than filing” provision “direct the statute not to do relate the essence mandatory, and, therefore, non-compliance thing to be done or where no substan precluded the Office of Administrative Hear rights depend compliance tial mth the jurisdiction acquiring from over re particular provisions injury and no can quest. Appellant argues filing But ignoring result them.” Jack Endo 103D-712(a) § requirement simply of HRS Electric, Inc., P.2d Haw. at at directory proper because it relates to the orderly conduct of business rather than the rights” of parties “substantial involved. added).6 (emphases Id. at 928 P.2d at 12 agency’s statutory An interpretation re above, Applying expressed the factors I con- viewed on a de novo basis. See Keanini provision clude in HRS

Akiba, 84 Hawai'i P.2d 103D-712(a) § is directory, and not mandato- denied, (App.), cert. 85 Hawai'i ry. V. IV. “[wjhere mentioned, As directions of a Samonte, In State given merely statute are with a view the (1996), P.2d 1 this court set forth detailed ..., orderly proper and conduct business analysis statutory requirements as to when regarded generally [the directo statute] mandatory they merely are and when Samonte, ry.” 83 Hawai'i at 612-18(e) Samonte, directory. HRS (citation omitted). (1993) was violated because the trial court July Effective Act 162 amended provide did prospective the “names of provided requests 103D-712 and jurors jury[ summoned sit as and] for administrative made forms[,]” juror qualification the contents of hearings. office of administrative Prior though explicitly even the statute stated that date, requests were to be filed provided this information “shall” be purchasing agency the head of the or the litigants involved. Id. at officer, procurement chief did (footnotes omitted). 11-12 This court noted the instant case. See HRS use of “the the word ‘shall’ the statute (Supp.1998). dispositive is not issue of whether directory.” face, mandatory statute is rather than appears 103D-712 *9 (quoting orderly Id. at 928 P.2d 12 Jack to at Endo relate the of business. In conduct Elec., Inc., Siegler, Inc. v. Lear designating filing Haw. one office for re- (1978)). holding and, P.2d In quests, the adopted measure uniform observe, moreover, "mandatory” requirement 6. post I that a re the concluded that to suffi quirement bond, necessarily is not although “mandatory” coincident with cient under the jurisdictional Navigation statute, one. In Matson Co. v. juris subject preclude did not a court’s d Deposit (1996), Corp., 81 Fed. Ins. judge erroneously diction where the determine mandatory "[a] this court held that at that defective bond was sufficient. Id. requirement necessarily jurisdiction not 916 P.2d at 687. ” al.’ at 686. P.2d at It was thus, Appellee position takes the orderly procedure appeal purposes. appeal, so, legislature the the decision “was made doing the the “issuance” is date In advanced signed,” by ruled the hear- efficiency final as was the offices involved. It was and alternative, Appellee ings In the support Committee is officer. “[the] declared that was the it was promoting that “issuance” as a means of contends of this measure “post- the or “at latest” when it was efficiency procurement proce- “mailed” greater suggests dif- Appellee Thus three Rep. No. in marked.” Stand. Com. dures.” Sen. Journal, measuring issuance. points ferent time as at 1024. While admit- 1999 Senate issue, majori- brief, history recasting the tedly supports its own the ty’s filing premise is that “issuance” should refer proposition require- that the direct mailed, evi- expedite orderly the date the decision was “as ment intended was postmark Majority history by the date.” conduct This demon- denced of business. opinion interpretation An the term at 988. strates that the amendment aimed efficiency the date of the decision orderly and the con- “issuance” other than business, hear- determining rather than conflicts with facts inasmuch as the duct specifically inter- rights parties involved. eschewed the substantive officer filing, pretation referring “mail- Consequently, Appellant’s mistake in issuance incorrect, ing" expressly not construed issuance technically did violate and while decision, and, hence, made mandatory requirement agency not mean the date its did i.e., 23,1999.8 jurisdiction of the Office of Admin- affect Hearings.7 istrative

B. VI. Initially, Appellee’s it must be noted that 103D-712(a) view of a statute such as A. surpass interpreting legisla does not ours hearings tive intent.9 See Ka Pa'akai O Ka'aina v. also determined Comm’n, request must denied under HRS 94 Hawai'i Land Use (“Although judicial defer agency generally expertise made within seven calendar of the date ence to accord signed. application undisputed interpretation the decision was ed where Appellee’s ambiguous statutory by signed language director his broad denying subject, re on November administrative tribunal view, by and the ten this deference is constrained our later, obligation meaning un- to honor the clear of a statute, interpretation, language, purpose, der officer’s as revealed (Internal marks, requesting already history.” quotation had time review ex- brackets, omitted.)); pired by time received the citations GATRI Blane, decision. note, mailing, conversely,

7. X "as the time limitations strued evidenced Majority filing postmarked opinion mandatory date." at' 988. have been held to be misleading. Appellee has taken jurisdictional. expressly This statement This has stat- signature position that the date of is the date language plain ed that "where the a statute "must occur also issuance unambiguous provision specific that a time met, prior at the to that either time of mandatory Himuro, merely must be it is and not majority opinion at 987 time." See note 2. directory.” State v. This stands majority argues agency’s position 9.The reason, beyond ap- extension as an time to weight, given majority deferential see peal rights impact would the substantial opinion rejects agency's view but then party. made that the decision "was issued when it was infra, For the reasons stated deadline signed.” majority opinion final and ("[A]s at 988 present appeal. law, implicated is not a matter of the date of can- *10 interpreted meaning the which not be date on signed majority 8. The states has taken the a written is the di- determination rector.”). position issuance should be con- (1998) (“[A]n agency[’s] proper person, conclusion of to proper law[ ] or the er?/ freely service, ... reviewable to determine if the officer for etc. agency’s affected other (6th ed.1990) Dictionary Black’s Law (Internal quotation of law.” error marks and added). (emphasis The term “issue” omitted.)). citation “issuance!,]” verb of the word which is noun. 103D, See Third Webster’s New Int’l Dictio chapter Neither HRS nor regu nary 1201 ambiguous A statute is adopted chapter, lations under this Hawai'i (HAR) capable it is being understood reason Administrative Rules title subtitle ably people well-informed chapter two or more the term define “issuance” as 103D-712(a). different ways. Group, Southern Foods it used HRS In inter 1043; “issuance,” we, Hawai'i at P.2d at course, see preting the term also Gray, 84 Hawai'i at 931 P.2d at 590 cannot “make what words mean we choose to (“When doubt, mean, there is doubleness of mean give make them than rather them ing, or or uncertainty indistinctiveness meaning!.]” their true of an Williamson v. Ha statute, expression Auth., ambiguity used Paroling wai'i Hawai'i (Citations omitted.)). (2001) (Acoba, J., exists.” “Issue” can dissenting, J.) forth; meaning be by Levinson, “[t]o construed as send to joined (interpreting the emit.” “shall,” Dictionary Black’s Law meaning “minimum,” 830. “Is the words sue,” however, “maximum”). “delivery can mean also construing “[w]hen writs, statute, proper person” process, in relation “to obligation our is to foremost ascer and the Dictionary like[.]” Black’s Law give tain effect to the intention of the subject Because the term “issuance” is legislature, primarily which is to be obtained to interpretations, ambiguous.10 different it is language contained the statute Group, Southern itself.” Foods L.P. v. (1993), Quoting majority 1-14 Hawai'i 1043 contends that the term “issuance” must be (1999) (citations omitted). Second, we “must “ construed to according its most ‘known and statutory language read the context of the ” signification.’ Majority usual opinion at entire statute it in and construe a manner 1-14, however, states, 987. HRS “The with purpose.” consistent generally words of law are to be understood

in their significa- most known and usual clear, (Emphasis Equally tion!.]” VII. statutorily that when mandated “words statute, In considering language of ambiguous!,]” only leg- law are must the “[wjhere defined, statutorily a term is not considered, objective islature’s but we are may rely upon ... we ‘extrinsic aids’ to reject to a construction which mandated Ling Yokoyama, such intent.” determine absurdity: would lead to an may meaning ambiguous The words (citations omitted). (App.1999) Black’s Law context, sought by examining “issue!,]” Dictionary defines the term in rele- words, ambiguous with which the part, vant as follows: phrases, may be and sentences com- forth; emit; as, promulgate; To send pared, in to ascertain their true orders, process officer issues issues meaning. circulation; as, put from a court. into To law, spirit The reason and out, treasury To issues notes. send legislature induced cause which deliver, use, officially; send out it, to enact be considered to dis- authoritatively; go forth as authoritative meaning. cover its true binding. When used reference writs, process, Every like the and the term is construction leads to an ordinarily absurdity rejected. importing delir- shall be construed acknowledges ambiguous noting majority anee” different 10. that the term is inter subject majority interpretations. See to different pretations). opinion (agreeing that the at 987 term "issu- *11 added). mailing, majority The refers to “date (emphases Inas- § 1-15 Majori by postmark date.” as evidenced involves notice §HRS much as But, mailing opinion at the date ty rights affecting the substantive a decision postmarked date may from be different process analogous to a writ or party, it is of a may be mailed a letter inasmuch as “delivery.” This issuance denotes in which Moreover, a dates. postmarked on different is also more of the term “issuance” definition mean “issuance” as of the term construction that follow. apt for the reasons decision, ing postmarked unjust result. to a similar could also lead VIII. post envelope agency The legislature that “[t]he This court has said some six marked November not to intend an absurd result” presumed may inferred that after it was dated. “rational, sensible, practicable that a decision, delayed mailing either preferred to one interpretation of a statute is date, delayed postmark resulting in the d impracticable.” which unreasonable or post in the office the letter was detaine Group, 89 Hawai'i Southern Foods Any being postmarked. substantial before (citations brackets at 1043-44 delivering the delay by post office in 15(3), omitted). supra. § 1 then, See also HRS decision, deny party would interpretation the word “issuance” to adjudi An opportunity to appeal the meritorious of the denial letter could refer to the date cate the claim. unreasonable, unjust, and absurd

lead to an Plainly, nothing there to indicate result, we are to avoid. See which mandated Rath- legislature intended such result. §HRS 1-15. er, sending the decision Appellee’s action of by receipt requested return case, instance, present the deci- For receipt was the plainly demonstrates by signed Appellee’s director sion was pivotal point triggering the time limit for 23, 1999. If this date were con- November requesting a review.11 issuance, Appellant sidered the date of Finally, mailing the refer- the date as have had to have filed its would pose point ence of issuance would similar 1999. See HRS 103D- 712(a) rec- problems.12 There is no evidence in the (request be “made within must was mailed. of a ord at all of when decision of the issuance seven stated, determination”). Further, But, there is no previously Appellant did written postmark date coincides until December indication not receive decision Thus, mailing. post- meaning the time the decision date the deci- obtained, not assure that already it too late for marked date does interpreta- by the director on that date. appeal. An sion was mailed Appellant to file an course, postmark the date of would have to such a result Of tion of issuance leads absurdity. relationship protesting unjust to an no plainly and leads Blalack, 11. The interpretation Agsalud majority indicates that an (citations omitted). Accordingly, mailing in har of "issuance" as the date of "is contrary interpretation any HAR mony provisions 3-126-74 with other light governing scheme[,]” rejected stat would be ute, majority opinion at and cites §HRS 103D-709. (relating to the issuance of a HAR 3-126-74 decision, than the di rather officer’s rule, however, decision). explicitly This rector's majority suggests that the untimeliness of copy requires "a officer’s Appellant’s request of the failure lo is because by per upon parly ... be each decision served filing provision, comply rather with the direct mail, by registered sonal sendee or mailing. majority than the actual date of certified added.). receipt requested.” (Emphasis return glosses opinion over the at 989. This conclusion 3-126-74, despite language, deny HAR other hearing’s officer to appears the view that appeal using signature to subscribe to the review the date of Moreover, necessary supra, starting point. and must be confirmed. decision is Moreover, lime as stated infra, axiomatic that to the date of "[i]t as stated there is no evidence as unknown as it be different rule cannot contradict or con it is inasmuch an administrative attempts implement." postmark. from the date of flict with

175 decision, party actually after the po- thus Chief Procurement Officer tentially eliminating aggrieved party’s renders a decision. timely to

rights .review without notification of S8-93, Rep. Stand. Com. in 1993 No. Senate Hence, any the decision. reliance on the Journal, added). (emphasis at 39-40 When 989, mailing!,]” majority opinion of “date at concerned with the a resolution of ambiguity.13 to a further leads then, brought by Appellant, clearly

legislature preserve to intended rights supra, of all parties, as stated and to IX. system. establish a fair See Sen Stand. delivery That issuance proper means to the S8-93, Rep. in Com. No. 1993 Senate Jour- person is construing confirmed statute nal, (stating procurement at 39 that the code whole, purpose, as a in view its applying of designed “[p]rovide is for fair [the] to and statutory rules of established construction. all equitable persons dealing treatment of. 191, Davis, 196, State Haw. v. 63 624 government system”). with the procurement (“It 376, in 380 is fundamental recognition This is consistent statutory part construction each or sec public in interest to secure fair a tion of be in construed con Corp. treatment of See In Carl bidders. re. every part nection with other or section so as State, 155, 172, 567, v. 93 Hawai'i 997 P.2d (Citations produce a harmonious whole.” (recognizing “policy consider omitted.)); Queen’s Appeal re Tax of underlying including ations the code” “those Ctr., 349, Haw.App. Med. 715 P.2d treatment, providing equitable of for fair and (1985) (“A statutory fundamental rule of ensuring accountability, increasing confi construction language statute’s integrity system”); dence in of In re must read context entire State, Arakaki v. 87 Hawai'i a statute and construed in manner consistent (1998) (instructing hearing purpose.” (Citing Saufua, with its State legislative objective “the of officer meet (1985).)). 67 Haw. 699 P.2d 988 Central providing equitable for ‘fair treat procurement to- code anwas admin the.new persons dealing govern of all .with the ment system designed preserve istrative ”); procurement system’ In re ment CARL rights aggrieved parties and maintain Corp. v. 946 P.2d fairness. (Oct. 1997) reconsideration denied legal bill provides [T]his for and contractu- (“The purposes of the Procurement Code are parties aggrieved al remedies over the provide equitable treat fair solicitation Parties or award of contract. persons pro all ment involved encouraged any disputes to settle safeguards provide ... and to curement through processes to save maintaining procurement system quality expense parties time and for both while (Quoting Planning integrity.” Design & preserving rights maintaining all Fe, City Solutions v. Santa 118 N.M. party may A challenge the solici- added).); (emphasis fairness. process, tation and awards a debarment Fasi, Corp. Federal Elec. 56 Haw. suspension, and breach contract. The (1974) (noting that “fair power will officer have sub- competition among prime is the bidders witnesses, facts, peona testimony, hear find any object procurement of [the code] and law, make conclusions of and issue written impair illegal” thing which tends to this Any decisions. final decision of the DCCA (quoting Lucas v. American-Hawai'ian Co., may appealed Eng’g and Constr. (1904)); Supreme Trucking Court. For contract dis- Hawai'i Okada body (citing testimony putes, governmental both the and the P.3d at 964 contracting party proceed procurement designed in circuit to “treat all code was way determining contrary major- 13. As indicated note is no verifiable mailing. case, evident, ity’s that "the date of ... cre- that re- assertion way establishing Appellee requested easily ceipt pivotal verifiable inasmuch as ates deadline[,]” opinion filing way majority acknowledgement by receipt. there of a return history indicating dealings fairly There no equitably in their bidders “prerogative” legislature exercised a system that government procurement time for *13 “to decide in public confidence in the and tó increase begin run- review should for administrative sys procurement tegrity government Majority than later.” ning sooner rather omitted)), (citation re and tem” vacated frame- supra, at the opinion As stated 450, 40 grounds, on other manded as it procurement the insofar code of. work. (2002); Co. v. P.3d 73 Marshall Constr. cf. disputes to indicates a concern for relates bid (noting Bigelow, 29 Haw. Cer- fairness the treatment of bidders. accepting public is a factor in the interest tainly, expediting the the award interest bids, bidding the to “secure purpose and of whole, Corp., re as a see In CARL process competition prevent and fair and favoritism at cannot conflict Lord-Young extravagance”); Wilson v. rights maintaining all “preserving with J., Co., (Perry, Eng’g S8-93, Standing Rep. Comm. No. fairness.” purpose concurring) (explaining the of Journal, Senate at 39. in 1993 is to procurement code “secure run requesting for review should time fair advantage of state benefit and, thus, receives, time a has bidder competition and at just between bidders right A notice of the decision. bidder’s to close, every far as possible, time as same prescribed by would not review to in its varied avenue favoritism fraud “preserv[edj.” the ma- otherwise be Under (“The forms”); Lucas, object 16 Haw. at 90 “issuance,” jority’s party’s of definition prevent statutory provisions to of all such be without it right appeal to could barred favoritism, im corruption, extravagance and decision, having notice of a ever awarding public con providence in the of all fundamentally and con- that is unfair result omitted.)). (Citation tracts.” trary legislature. to the intent of Thus, the of in the definition “issuance” X. resolving protests that best of bid

context corresponds intent of pur jurisdictions have held that Other maintaining fair- “preserving rights all appeal, poses triggering of the time for delivery refers to ness” is may be to date of “issuance” construed Rep. Com. the bidder. Stand. party aggrieved the date an receives actual Journal, S8-93, in 1993 Senate at 39-40. No. Skelly Co. notice of decision. Oil See, e.g., (“Any or actual Co., Phillips Petroleum U.S. bidder, offeror, or contractor who prospective (1950); S.Ct. 94 L.Ed. Palisades aggrieved in connection with the solicita- Citizens Ass’n v. Dist. Columbia Alcoholic may protest tion or award of a contract Bd., Beverage 324 A.2d Control procurement chief officer or the head of a (D.C.1974) upon Shelly (relying Oil Co. and purchasing agency.”); § 103D-704 public holding requires “that ‘issuance’ (“The procedures provided order”); remedies knowledge of the substance of the part, adopted and the rules Queen, Rayburne Wyo. office, policy shall be exclusive means (“Certainly must party re aggrieved persons in connection available either construc ceive some notice actual or contract, with the solicitation or award of a if he is to she] [a] tive be bound [or decision.”).14 proceeding, or suspension Shelly debarment Oil a contract controversy, involving pipeline contract obli connection with a the construction of a differences.”). petitioners provide gas gated their unless resolve claims But, chapter Appellee attempts distinguish have re- this line of 92F.” could not by arguing director’s decision was quested cases public pursuant the decision under HRS 103D-105 un- as it could have been obtained inasmuch way knowing it had that the decision less some pro- to HRS 103D-105. That statute approach, signed. Appellee's had been Under that, materials, except for vides confidential triggered appeal Appellant’s time to would relating procurement "government records knowledge. Appellant’s without public provided be available to the shall “Michigan-Wisconsin Pipe Company appeals. Line manded to court of Id. at shall fail to secure ... a rights certificate S.Ct. 876.15 Inasmuch as “issuance,” convenience.” 339 U.S. 70 S.Ct. 876. triggered The contract that in event indicated appear would “due administration of contingency, any such a “at time after De id., justice[,]” requires party that a must cember but before the have received notice decision. petitioners certificate” the could ter [a] added). (emphasis minate the contract. XI. On November the Federal Power *14 public Commission issued a certificate of con “Ambiguities statutory language venience, but the not information was made imperil not be so resolved as to a substantial public. On peti Id. December right granted.” which has been Reconstruc- gave tioners notice of the termination their Group tion Advisory Fin. v. Prudence Sec. day, contracts. Id. On the same news of Group, 311 U.S. 61 S.Ct. public. the Commission’s action was made above, L.Ed. 364 As indicated “[a] against Id. Michigan-Wisconsin brought suit rational, sensible, interpreta- practicable and petitioners alleging that the certificate of tion of preferred a statute is to one which is prior convenience been had issued impracticable.” unreasonable or Southern petitioner’s attempt terminate the con Group, Foods tract, sought declaration that con Therefore, at 1043-44. the term “issuance” tract binding. was still Id. The district court 103D-712(a) under HRS must be deemed effect, held that the contract was still in receipt by petitioning party the date of appeals the court of affirmed. Id. order to effectuate the intent of allowing aggrieved party appeal an appeal, Supreme the United State measured, erroneous decision. So re- Court construed the term “issuance” uti- quest appeal for an was received within the contract, lized in “a and held that certifi- day period. seven calendar The decision was cate cannot be said to have been issued for by Appellant received on December 1999. purposes rights defining seeking and the days Seven December would have aggrieved person reconsideration request been a hearing December 9. The merely in the substance bosom the was hand delivered to on December Commission.” Id. at 876. S.Ct. The 3,1999. letter, turn, This “[k]nowledge Court was transmitted stated that of the sub- Hearings Office Administrative on stance must some extent be made mani- result, fest.” As a December the Court held that December “due 1999. justice” required day administration of was received one judgment statutorily required.16 be vacated and the ease re- earlier than mailed, period Clearly, merely computation if a decision were but be included in a -when received, prescribed then not the decision would not be allowed is seven or time or Instead, made the substance of the less. manifest. (Emphases provision only rule decision would be known to the sender. This does not however, apply, computing the time assuming ‘‘[e]ven contends that ar- seven-day period provided by” is "otherwise guendo postmark is the date of the 3-126-42, 103D-712(a) §HAR issuance,” timely filed on specific governing provisions. more and the 3-126-49(a), on HAR based Blalack, Agsalud v. 67 Haw. which states: (1985) ("It is axiomatic that an adminis- rule, provided by Unless or otherwise trative rule cannot or conflict with the contradict (Citations computing any period prescribed of time or attempts implement.” statute it act, Comm'n, omitted.)); chapter, day Topliss Planning allowed this of the event, designated App. default after which the 391 n. 657 n. 11 or (1993) ("Administrative period enlarge, lime is run shall not included. rules alter, day period computed provisions so shall restrict of the statute last (Citations omitted.)). Saturday, Sunday, being administered.” included unless it is a requests legal holiday for re- event states that in the which period day until is neither view "shall be made within seven calendar runs the next determination!)]” Saturday, holiday. Sunday, of written nor a Intermedi- added.). Saturday, Sundays, holidays (Emphasis § 3-126-42 shall not See also HAR ate proceed- XII. al and remand the case for further opinion. consistent wit'll Accordingly, I would vacate the 17,1999 of dismiss- officer’s December (slating partment proceeding that an administrative "shall of commerce consumer affairs days, within seven calendar commence in accordance with added)). hearings, (emphasis ’’ de

with the office of administrative section 103D-712