{ "id": 352284, "name": "RENAISSANCE OFFICE, LLC and Michael Branch, Petitioners-Appellees, v. STATE of New Mexico, GENERAL SERVICES DEPARTMENT, PROPERTY CONTROL DIVISION, Respondent-Appellant", "name_abbreviation": "Renaissance Office, LLC v. State, General Services Department, Property Control Division", "decision_date": "2001-07-18", "docket_number": "No. 21,570", "first_page": "723", "last_page": "731", "citations": [ { "type": "official", "cite": "130 N.M. 723" }, { "type": "parallel", "cite": "31 P.3d 381" }, { "type": "parallel", "cite": "2001-NMCA-066" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2000-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217130 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0539-01" ] }, { "cite": "1998-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834250 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 15" }, { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0140-01" ] }, { "cite": "118 N.M. 707", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563470 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nm/118/0707-01" ] } ], "analysis": { "cardinality": 1133, "char_count": 32192, "ocr_confidence": 0.691, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.013410627414957398 }, "sha256": "d303e9ba7df631641026979a1961a3f58e49fc890be899c72dced2370e280400", "simhash": "1:f0232220774fc27a", "word_count": 5212 }, "last_updated": "2023-07-14T18:57:26.853949+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, and IRA ROBINSON, Judge." ], "parties": [ "RENAISSANCE OFFICE, LLC and Michael Branch, Petitioners-Appellees, v. STATE of New Mexico, GENERAL SERVICES DEPARTMENT, PROPERTY CONTROL DIVISION, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} The State of New Mexico General Services Department (GSD) asks this Court to reverse the district court\u2019s appellate determination favoring a protest of GSD\u2019s cancellation of a request for proposals for leased office space under the Procurement Code. GSD seeks review in this Court of whether Section 13-1-182 permits an award of contract damages in the absence of a finding of a valid, written contract, inasmuch as Section 37-l-23(A) grants immunity to State agencies such as GSD from actions based on contract except when based upon a valid, written contract. We decline GSD\u2019s request and affirm.\nBACKGROUND\n{2} The State of New Mexico Department of Health (DOH), in conjunction with GSD\u2019s Property Control Division (PCD), issued a Request for Proposals for Leased Office Space (RFP). In November 1997 Petitioner Renaissance Office, LLC, whose partners include Allen Branch and Petitioner Michael Branch, submitted a build-to-suit, twenty-year lease proposal that gave the State the option to purchase the property for one dollar at the end of the lease. On December 19, 1997, DOH notified Gerald Chavez, Chief of PCD\u2019s Leasing & Property Management Bureau, of DOH\u2019s selection of the Renaissance proposal \u201cas the top ranked proposal\u201d and requested PCD\u2019s approval to proceed with the Renaissance project. In that notification, DOH also asked PCD to reissue the RFP if the project in question was not acceptable. In addition, DOH asked PCD for \u201ca sample letter to be issued to the top offer.\u201d\n{3} On January 13, 1998, PCD\u2019s Chavez authorized DOH to \u201cproceed with notification to ... Renaissance ... that they are the \u2018Top-Ranked Offeror\u2019 and may proceed with Lease Record Drawings.\u201d PCD stated: \u201cWe look forward to receiving copies of your notification letters and receiving the Lease Record Drawings and the Lease Agreement.\u201d On the same day, DOH selected the Renaissance Office Park site and instructed Renaissance to prepare lease record drawings and submit them to PCD for review. DOH informed PCD of this.\n{4} In a conversation with PCD\u2019s Chavez on February 18, 1998, Allen Branch learned of a PCD concern about the legality of the purchase option in the Renaissance proposal. Branch corresponded with Chavez on February 19, 1998, about the legal aspects of the issue and suggested PCD consider alternatives, including a sole source procurement based on the fact that the Branches were the only source offering lease-purchases.\n{5} The record in this case does not reflect any correspondence or telephone communication between Renaissance and PCD from February 19 until May 12, 1998. At some point, presumably after the January 13 selection notification, Renaissance proceeded to prepare lease record drawings, which PCD received on April 8. On April 23, DOH sent the lease record drawings to PCD\u2019s Chavez, stating that DOH \u201creviewed them and finds them to be acceptable to our needs as requested through the request for proposal.\u201d\n{6} Meanwhile, Renaissance prepared and submitted a twenty-year lease on the required GSD form, showing Renaissance as lessor and DOH as lessee, signed by Michael Branch on April 22, 1998. Under \u201cOther Provisions,\u201d Renaissance inserted: \u201cState of New Mexico has the option to purchase the office building at the end of the lease term for $1.00 (one dollar) plus all closing costs associated with the transferring of ownership.\u201d An attachment to the lease detailed the purchase-option concept, explaining why the build-to-suit, lease-to-own offer was a \u201cwin-win situation\u201d for both parties. This attachment was identical to that attached to the Renaissance proposal submitted to DOH in November 1997 and selected by DOH in January 1998.\n{7} The lease was signed by a Special Assistant Attorney General on May 7, 1998, under the printed form statement \u201cAdditions to the standard Lease of Real Property have been reviewed and approved by:\u201d and next to the handwritten statement \u201c5/7/98 letter to' David Vigil from Lester H. Swindle Director, Property Control Division.\u201d This May 7 letter from Swindle to Vigil, a DOH administrator, discussed whether leases could exceed ten years, and stated, among other things, that PCD had decided to waive the GSD Rule 92-501, section 12.2, maximum ten-year lease term limitation and to permit RFPs to \u201csolicit a maximum lease term, not to exceed, twenty years.\u201d The lease was signed by DOH on May 12.\n{8} Following a conversation Allen Branch had with the Office of the Secretary of GSD on or about May 12 regarding the purchase option, Renaissance sent a letter to GSD stating the Renaissance view that the purchase option was legal, in that neither DOH nor the State was obligated to purchase the building. Renaissance was nevertheless \u201cwilling to strike the purchase-option clause if the attorney general\u201d did not agree. On May 14, PCD (Swindle) wrote to DOH (Vigil) that the RFP process had not been followed, in that neither \u201cSigned (Lessor/Lessee) Lease Record Drawings\u201d nor a lease \u201cwithout the lease-purchase option pursuant to section 12.3 of GSD Rule 92-501\u201d had been submitted to PCD. Noting that \u201cthis violates the terms of the RFP,\u201d PCD allowed five days to remedy \u201cthis situation.\u201d PCD attached Section 12.3 \u201cOptions to Purchase: Any proposal which includes an option to purchase shall be deemed nonresponsive and shall be rejected.\u201d PCD stated that \u201c[ujpon receipt of the aforementioned documents, PCD will proceed to review their acceptability, and continue the lease process.\u201d PCD stated, too, that it would not consider approval or disapproval of the lease until all RFP requirements were followed, and that PCD\u2019s final determination would be made in the best interest of the DOH and the State.\n{9} On May 28,1998, Renaissance wrote to DOH, expressing concern that \u201cProperty Control is considering not signing our lease that we have been working on since last October.\u201d Branch noted that neither DOH nor PCD had objected to or revised the lease record drawings and that Renaissance proceeded to lease preparation according to the \u201cagreed upon terms as per the RFP and agency negotiations.\u201d The letter also pointed out Renaissance had concluded on a timely basis the development of a 20,000-square foot building, involving construction drawings, engineering studies, forward commitments, land deposits, soils tests, surveys, lot split applications, title work, at a total cost of $245,000, including appraisal and legal fees. In this letter, Renaissance requested reimbursement of costs plus a reasonable profit if PCD did not sign the lease under NMSA 1978, \u00a7 13-1-182 (1984) (Ratification or termination after an award) of the Procurement Code, NMSA 1978, \u00a7\u00a7 13-1-28 to -199 (1984, as amended through 1999).\n{10} On June 2, after learning that DOH and GSD lawyers \u201csuppose[d] that if you drop the lease-purchase option provision in the lease, that it would violate other bidders]\u2019] rights,\u201d Renaissance suggested to DOH that DOH and PCD had authority under the RFP to drop the purchase option and proceed with the project. Presumably referring to Section 13-1-182, Renaissance asserted that because DOH had actually signed the lease, PCD had only three options under State law: \u201cratify the lease, amend the lease to comply with the law, or terminate the lease and reimburse expenses and reasonable profit.\u201d\n{11} On June 25, PCD notified Renaissance that PCD officially cancelled the RFP effective June 3, \u201cpursuant to GSD Rule 92-501, Section 12.3 Options to Purchase.\u201d In a July 1 letter to GSD, Renaissance responded that Swindle \u201cknew about the purchase-option in January when we met with him to specifically discuss the issue,\u201d but \u201cnever deemed the proposal non-responsive while it still was in the Bidding Phase.\u201d Further, Renaissance stated that \u201cSwindle is reviewing a lease that does not even have a purchase-option provision since it was removed.\u201d\n{12} A June 29 letter from Renaissance to PCD pointed out DOH ultimately accepted the lease without the purchase-option provision and that DOH had written to GSD that it was in DOH\u2019s best interests that PCD ratify the lease as submitted without the purchase-option provision. Renaissance sent PCD an invoice dated June 30 for $245,000 in costs, plus a 15 percent profit of $36,750, plus gross receipts tax, seeking total compensation of $299,359.38.\n{13} Then, in a July 6 letter referencing a May 28 email from Renaissance to DOH, GSD notified Renaissance that, pursuant to Rule 92-501, Section 12.3, PCD cancelled the RFP. GSD stated that the Renaissance proposal, \u201cwhich was premised on legally disqualifying elements, should have been disqualified at the beginning of the process.\u201d As a result, the RFP had to be cancelled and the entire process redone. Further, GSD stated: \u201cThis action may be inconvenient for you and the other proposers; however, if the process is not redone, any problems caused by the earlier RFP will just be compounded.\u201d\n{14} Renaissance responded to GSD in a July 7 letter reiterating that PCD knew about the purchase option far before Renaissance incurred its costs in preparation of the lease record drawings, and that currently the lease had no purchase option in it. Renaissance and Michael Branch (Petitioners) formally protested the PCD and GSD actions on July 9, 1998, requesting \u201cthe contract be reinstated and that any conflicting RFP be cancelled,\u201d but also seeking \u201calternate relief provided for in NMSA 1978, \u00a7 13-1-182.\u201d Petitioners primarily grounded their protest in the following:\nOn January 13, 1998, the award letter was issued without conditions and with the request that Renaissance begin the production of lease record drawings, including site plan, floor plans, elevations, and other drawings sufficient to describe the proposed lease space. These were submitted and approved in April of 1998.\nOn May 14, 1998, Mr. Swindle requested that the lease record drawings be submitted and that the proposed lease agreement delete any \u201clease/purchase option.\u201d The proposed lease was not a lease/purchase option, but simply contained an option to purchase for $1 which could either be exercised by the State of New Mexico or not. It had no bearing upon the lease price. In any event, this condition was removed as requested by the May 14, 1998 letter and as authorized by NMSA 1978, \u00a7 13-1-182.\nPCD denied the protest based on the documentary record.\n{15} Petitioners sought review of PCD\u2019s protest denial in district court pursuant to Section 13-1-183 seeking compensation under Section 13-1-182 for actual expenses reasonably incurred plus a reasonable profit. The district court concluded PCD acted arbitrarily, capriciously, or contrary to law, and Petitioners were entitled to Section 13-1-182 relief. These conclusions were based on findings that \u201can award of the ... lease project\u201d was made at the time the \u201cnotice of the award was mailed to [Petitioners] and requests made for [Petitioners] to proceed,\u201d and that this \u201caward was again confirmed by [PCD] through a request that a perceived deficiency or revision take place to comply with law.\u201d In apparent response to GSD\u2019s positions that no contract existed because the PCD Director did not sign the lease agreement and that the State was immune because no valid, binding contract existed, see NMSA 1978, \u00a7 37-l-23(A) (1976), the district court also concluded that it need not \u201creach the issue of whether a contract was formed.\u201d. Finally, the court held that Petitioners\u2019 \u201crights provided herein are supported by the doctrines set forth in [Planning &] Design Solutions v. City of Santa Fe, 118 N.M. 707, 885 P.2d 628 (1994).\u201d\n{16} The primary question, whether there was an \u201caward of a contract\u201d under Section 13-1-182, requires us to analyze whether the only \u201ccontract\u201d that can be \u201cawarded\u201d under Section 13-1-182 in the lease procurement process is a lease agreement signed by the PCD Director. If Renaissance must prove a lease agreement signed by the PCD Director, for relief under Section 13-1-182, Renaissance\u2019s protest must fail. The immunity statute, Section 37-l-23(A), comes into play only if Section 13-1-182 permits relief for an \u201caward of a contract\u201d short of a lease agreement signed by the PCD Director. If a PCD-signed lease agreement is not required for Section 13-1-182 relief, then a determination must be made whether the Section 13 \u2014 1\u2014 182 remedy clashes with Section 37-l-23(A) immunity and, if so, which prevails.\nStatutory Construction and Standard of Review\n{17} We apply the principle that competitive bidding requirements will be \u201cstrictly construed against the governmental authority proposing the bid.\u201d Wisznia v. State Human Servs. Dep\u2019t, 1998-NMSC-011, \u00b6 14, 125 N.M. 140, 958 P.2d 98. Further, we construe the Procurement Code liberally and apply it to promote its purpose to treat all persons involved in public procurement fairly and equitably. Id.; \u00a7 13-1-29(A), (C). We review de novo whether the district court erred in its interpretation of a statute. TPL, Inc. v. N.M. Taxation & Revenue Dep\u2019t, 2000-NMCA-083, \u00b6 7, 129 N.M. 539, 10 P.3d 863.\nDISCUSSION\n{18} We think it helpful to first discuss the procurement process, after which we set out the parties\u2019 contentions and our decision.\nA. Rule 92-501 and the Procurement Code\n{19} GSD instructs us that the Procurement Code does not \u201cby its own terms\u201d apply to the procurement of leases for office space. See \u00a7 13-1-30(A) (\u201cApplication of the code.\u201d). GSD Rule 92-501 governs the leasing of office space. Section 3.6 of GSD Rule 92-501 provides, however, that it adopts the Procurement Code, \u201cexcept to the extent that [Rule 92-501] conflicts with the Procurement Code.\u201d\nB. The RFP Form and the RFP Process\n{20} The RFP sets out the specific procedure by which DOH sought the procurement of leased office space. Once the RFP is issued, and after a pre-proposal meeting, potential \u201cOfferors\u201d such as Petitioners are to submit a proposal on a GSD lease proposal form with a bond. \u201cThe RFP establishes the requirements used to evaluate and select the best overall [lease] proposal.\u201d A committee of the State executive agency seeking leased space under the RFP, here DOH, reviews the lease proposals and develops \u201crecommendations for award of lease space.\u201d The committee selects a \u201cLessor-Elect,\u201d called the \u201cTop-Ranked Offeror,\u201d here Renaissance, and notifies the Director of PCD of the \u201cNotice of Award \u201d and \u201cNotice to Prepare Lease Record Drawings.\u201d\n{21} Lease record drawings are prepared by the Top Ranked Offeror and \u201ctypically are Schematic Design/Design Development level drawings which provide a general description of all major building systems and specifically [show] a positive response to [the] RFP\u2019s SECTION III: Agency Lease Space Requirements & Architectural Program.\u201d The lease record drawings include the site plan, floor plan, elevations, and other drawings to comply with the architectural program in Section III of the RFP. PCD reviews the lease record drawings for \u201cbasic code compliance.\u201d\n{22} Lease record drawings \u201care the Offeror\u2019s final qualification of the Bidding Phase of [the] procurement, and upon written approval the Offeror becomes the Lessor-Elect.\u201d Further, \u201c[w]ritten notice shall authorize the Lessor-Elect to enter into a Lease Agreement with the Agency.\u201d \u201cLease Agreement\u201d is not defined in the RFP. The \u201clease\u201d is the standard New Mexico Lease of Real Property (GSD Form 501-01), \u201cincluding Performance Bond or Lease Record Drawings.\u201d It is to be prepared, signed, and submitted by the Lessor-Elect to the Agency, and then forwarded to the PCD Director for final approval. The signature of the PCD Director makes the lease \u201clegal-and-binding.\u201d The last event is acceptance of occupancy once there is confirmation the actual lease space matches the lease record drawings.\n{23} If the Lessor-Elect does not submit the lease in a timely manner, \u201clease award\u201d may be made to the next highest ranked Offeror. \u201cAny Offeror who is aggrieved in connection with the award of a Lease may protest to the [PCD] Director.\u201d The protest period begins \u201con the day following the date of written \u2018Notice of Award\u2019 from the Agency as approved by the [PCD] Director.\u201d\n{24} The RFP refers to Rule 92-501 and to several Procurement Code provisions, including Sections 13-1-181 (Remedies prior to award) and 13-1-182 (Ratification or termination after award).\nC. The Actual RFP Process in This Case and the Protest Decision\n{25} In this case, DOH was the State executive agency seeking leased space under the RFP. Petitioners submitted a proposal. The proposal contained purchase-option language, with a detailed explanation why this option arrangement was good for both Petitioners and the State.\n{26} After evaluating Petitioners\u2019 proposal, and based on PCD\u2019s express authority, DOH selected Petitioners as the Top-Ranked Offeror or Lessor-Elect. DOH gave Petitioners a Notice of Award, and notified the Director of PCD of that Notice of Award. Pursuant to PCD\u2019s express authorization and statement that PCD \u201clook[ed] forward to receiving ... the Lease Record Drawings and the Lease Agreement,\u201d DOH gave its Notice to Prepare Lease Record Drawings to Petitioners, and informed the PCD Director of that notice. Petitioners prepared lease record drawings and also prepared a lease on the required GSD form. Petitioners submitted the lease record drawings to PCD and DOH. DOH forwarded a set to PCD. Petitioners thereafter submitted the lease to DOH, and DOH, along with a Special Assistant Attorney General, signed the lease. The lease was then given to PCD.\n{27} PCD saw only two \u2018Violations.\u201d PCD gave Petitioners five days to remedy them. First, PCD stated it did not receive signed (lessor/lessee) lease record drawings. PCD\u2019s concern regarding this \u201cviolation\u201d disappeared at some point. It was not a basis for PCD\u2019s decision to reject Petitioners\u2019 proposed lease and cancel the RFP. Second, PCD required a \u201cProposed Lease Agreement without the lease-purchase option pursuant to Section 12.3 of GSD Rule 92-501.\u201d From all indications, the response of Petitioners and DOH was to actually remove the $1.00 purchase-option language from the proposed lease.\n{28} The RFP process was not completed. The PCD Director did not sign the lease agreement and DOH did not accept occupancy. Yet Petitioners advanced through the RFP process even to the point of facially curing, if not actually, the only two expressed \u201cviolations\u201d given by PCD as reasons \u201cthe RFP process had not been followed.\u201d Despite DOH\u2019s apparent desire that PCD sign the lease without the purchase option, PCD stopped the RFP process by cancelling the RFP because of what it termed, without any explanation, \u201clegally disqualifying elements.\u201d\n{29} PCD wrote a seventeen page denial of Petitioners\u2019 protest with Rule 92-501 and the GSD Form 501-01 Lease of Real Property attached. Pertinent to the Section 13-1-182 related determination that the award of the contract was in violation of law, PCD discussed Exhibit A to Petitioners\u2019 proposal in which Petitioners gave the reasons the lease-to-own proposal was good for DOH. Among other things, the lease-purchase option spread the cost of the building over its useful life, with the benefit of \u201chome ownership\u201d and \u201c100 percent financing of asset cost.\u201d PCD was troubled by Petitioners\u2019 later position that the removal of the purchase option did not affect the proposal or the lease price.\nIf [Petitioners] did not intend these financing terms as stated in [the] proposal, it is now attempting to amend its proposal after receipt of the proposal in contravention of the terms and conditions of the RFP. To agree to lease terms premised upon the state buying the building over twenty years, but without the legal authority to exercise the option to purchase for one dollar, would not be in the best interest of the state.\nIn PCD\u2019s view, the proposed lease was not in the best interests of the State with or without the purchase option.\n{30} In the final analysis, PCD deemed the proposal to be non-responsive because it contained the option to purchase and therefore violated Section 12.3 of Rule 92-501. PCD determined Section 13-1-182 applicable only if the protest were filed after \u201cthe award and execution of a valid, binding contractual agreement\u201d and that, in this ease, the proposed lease agreement had to have been approved and signed by the PCD Director.\nD. The Parties\u2019 Contentions\n{31} The district court interpreted \u201caward of a contract\u201d under Section 13-1-182 to mean \u201caward of the [DOH] lease project\u201d based on the notice of award and PCD confirmation. GSD argues that this required the court \u201cto imply a contract or contrive one for the purpose of calculating damages.\u201d In either case, according to GSD, the court\u2019s ruling \u201cpermit[s] an award of contractual damages against PCD, in the absence of a valid, written contract involving any state agency\u201d in direct conflict with the immunity granted by Section 37-l-23(A). GSD calls this a \u201cjudicial repeal of the immunity granted by Section 37-l-23(A).\u201d\n{32} According to GSD, the only \u201ccontract\u201d on which Petitioners can sue is the lease agreement signed by the PCD Director as required under Section 5.2 of GSD Rule 92-501:\nLease Agreements: The PCD Director shall have final approval of all leases, lease amendments, lease extensions, exercise of options-to-renew and all other agreements subject to this rule. No such agreement shall be valid or binding on the State of New Mexico or any of its agencies unless it is in writing, signed by the appropriate parties and approved by the PCD Director. The PCD Director\u2019s signature shall not signify that PCD is a party to an agreement, but only that PCD has authorized the agreement and approved it for compliance with this rule.\n{33} In addition, GSD argues, the RFP and lease form also expressly say that the lease is not valid (legal and binding) unless and until it is signed by the PCD Director. GSD contends that Wisznia is \u201cvirtually identical\u201d to the case before us. There, the New Mexico Supreme Court held that approval of a lease agreement by the PCD Director is a condition precedent to the formation of a binding lease agreement between a lessor and a State lessee agency. Wisznia, 1998-NMSC-011, \u00b6 15, 125 N.M. 140, 958 P.2d 98,.\n{34} In their brief on appeal to this Court, Petitioners contend that under Section 13 \u2014 1\u2014 182 the \u201cdefining moment is the award,\u201d the latest point of which was \u201cwhen [Petitioners] delivered the Lease Record Drawings to PCD.\u201d In oral argument, Petitioners were more specific, contending that Section 13 \u2014 1\u2014 182 is triggered at the time an offeror is selected as the top-ranked offeror and receives a notice of award under the RFP. Petitioners reason that the remedial goal of Section 13-1-182 is to assure that offerors who spend considerable amounts of time and money in the preparation of lease record drawings after being chosen as the top-ranked offeror are not left without compensation if the PCD Director later determines the award is in violation of law.\n{35} Petitioners disagree with GSD\u2019s position that no contract was formed. They argue that the RFP, Petitioners\u2019 response, DOH and PCD\u2019s authorization to proceed, and Petitioners\u2019 preparation and submission of the lease record drawings constitute a contractual offer and acceptance that come within the meaning of \u201caward of a contract\u201d under Section 13-1-182. Petitioners further assert this transaction is a valid, written contract. All that was left to be done, Petitioners contend, was for the PCD Director to perform the ministerial duty of determining whether the lease record drawings, already reviewed and approved by DOH, complied with specifications and building codes. This compliance was never at issue.\n{36} Petitioners cite Planning & Design Solutions \u201cin answer to PCD\u2019s contentions that there are no remedies available to Renaissance which can address the abuse of the procurement process by [PCD].\u201d Petitioners appear to ask this Court to follow the approach taken in that ease and \u201clook beyond the contract issues and examine the conduct of the parties to determine whether equitable remedies might apply.\u201d\nE. The Result in This Case\n{37} The question is whether \u201caward of a contract\u201d in Section 13-1-182 in a lease procurement means \u201clease award\u201d at the site-and-offeror-seleetion stage of the RFP process or at some other stage in the RFP process, short of the signing of the lease by the PCD Director. If it does, then we must determine if recovery is dependent upon that \u201clease award\u201d being a \u201cvalid, written contract\u201d under Section 37-l-23(A), or whether we look solely to Section 13-1-182 and not at all to Section 37-l-23(A).\n{38} In our view, Section 13-1-182 entitles Renaissance to relief in this ease. The \u201caward of a contract\u201d in the RFP lease procurement process occurs over time in steps. The issuance of the RFP sets the process in motion and the RFP sets that process out in detail. After responses are received, the most significant event in the award process occurs with the selection of the top-ranked offeror by the notice of award. Under GSD\u2019s view, however, there is no stepped award process. According to GSD, the \u201caward of a contract\u201d under Section 13-1-182 does not occur until the lease contract is signed by the PCD Director. The process involving notice of award, preparation and approval of lease record drawings, lease contract approval by the agency and attorney general, and finally lease contract approval by the PCD Director is, for the purpose of defining \u201caward of a contract,\u201d all collapsed by GSD into one event: the signature of the PCD Director on the lease contract. We do not accept this narrow view of the process, or of the meaning of the words \u201caward of a contract\u201d in Section 13-1-182.\n{39} The more reasonable construction of Section 13-1-182 under the circumstances of this case is that it is meant to provide reimbursement and recovery of a reasonable profit for time and money spent in reliance on a lease award grant of lessor-elect status under the RFP. Barring the illegality of some aspect of the process, that status is one in which the lessor-elect should be the lessor once the lease record drawings are prepared and determined to be in compliance with building and zoning requirements. The lessor-elect may fail to provide proper lease record drawings, but this is not a legality concern that would implicate Section 13\u20141\u2014 182, which is implicated only when the award of the contract is in violation of law. See \u00a7 13-1-182.\n{40} We hold that, in this lease procurement case, the selection of Renaissance as the top-ranked offeror and the Renaissance site through the notice of award was the \u201caward of a contract\u201d under Section 13-1-182. In this case, before the notice of award was issued, PCD should have carefully reviewed the proposal for legality and should have made a timely determination as to legality. Where the RFP is terminated after an award for an illegality apparent in the proposal before the award, PCD can, as here, find itself subject to Section 13-1-182. We see no policy or economic purpose in choosing the specific moment of the PCD signature as the trigger for Section 13-1-182 relief, and GSD has provided none.\n{41} We determine that the immunity statute does not bar relief under Section 13-1-182. Section 37-l-23(A) relates specifically to actions \u201cbased on contract.\u201d The present action, however, is purely statutory, based on a right granted in the Procurement Code, where a lessor-elect in the lease procurement RFP process suffers loss because the State later determines a proposal in response to the RFP is in violation of law.\n{42} The parties have discussed Section 13-1-181 in arguing the proper interpretation of Section 13-1-182. Section 13-1-181 says that if, \u201cprior to award, the state purchasing agent or a central purchasing office makes a determination that a solicitation or proposed award of a contract is in violation of law, then the solicitation or proposed award shall be cancelled.\u201d Nothing in our decision conflicts with this section which gives PCD the authority before a notice of award to cancel an RFP if it determines the RFP, or any proposed award based on the RFP, is in violation of law.\n{43} We have reviewed various other sections of the Procurement Code that contain the words \u201caward of a contract.\u201d See \u00a7\u00a7 13-1_69, -74, -100, -108, -139, -140, -144, - 172, -173, -177, -181, -192, and -198. Our decision today does not conflict with those provisions. Nor do we think that any of those provisions reflects, as GSD contends, a legislative intent requiring us to interpret Section 13-1-182 as providing relief only if an RFP is terminated after the lease contract is signed by PCD.\n{44} We do not agree with GSD\u2019s view that Wisznia is controlling precedent requiring reversal. Wisznia was an action for damages for breach of contract, and alternatively, on a theory of estoppel. Wisznia, 1998-NMSC-011, \u00b6 1, 125 N.M. 140, 958 P.2d 98. The facts are similar to the present ease. Wisznia responded to a HSD request for proposal involving the construction of a building in which HSD would lease space. Id. \u00b6 2. HSD selected Wisznia\u2019s proposal subjeet to final GSD approval of building plans and specifications and a legislative appropriation for the rent payments. Id. \u00b6\u00b6 3-4. HSD cancelled the RFP. Id. \u00b6 8. Wisznia sued, contending that a contract was formed when HSD selected his bid. Id. \u00b6\u00b6 9, 11. The Supreme Court held that \u201cGSD approval and legislative appropriation were not mere legal formalities; they were conditions precedent to contract formation,\u201d and \u201ca contract was not formed in this case.\u201d Id. \u00b6 15. The Court also determined that the circumstances did not warrant application of the doctrine of estoppel, denying what the lower court characterized as the \u201cequitable remedy.\u201d Id. \u00b6\u00b6 16-18. Wisznia is not controlling precedent. The meaning and applicability of Section 13-1-182 was neither argued to nor mentioned by the Supreme Court. Neither Section 37-1-23, nor Rule 92-501, was involved.\nCONCLUSION\n{45} We affirm the decision of the district court.\n{46} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE, Judge, and IRA ROBINSON, Judge.\n. Section 13-1-182 reads:\nIf, after an award, the state purchasing agent or a central purchasing office makes a determination that a solicitation or award of a contract is in violation of law and if the business awarded the contract has not acted fraudulently or in bad faith:\nA. the contract may be ratified, affirmed and revised to comply with law, provided that a determination is made that doing so is in the best interests of a state agency or a local public body; or\nB. the contract may be terminated and the business awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to termination.\n. Section 37-l-23(A) reads:\nA. Governmental entities are granted immunity from actions based on contract, except actions based on a valid written contract.\n. The Procurement Code uses \"award\u201d in vari- . ous ways. We note, for example, that Section 13 \u2014 1\u2014100 uses both \"award\u201d and \"execution\" in relation to \"contracts,\u201d apparently to distinguish between the two terms. In Section 13-1-105, a \"bid\u201d is \u201caccepted for consideration for award.\u201d In addition, an \"award of professional services\u201d is made to an offeror whose proposal meets certain requirements. Section 13-1-117.1. Section 13-1-143 refers to a \"contractor award.\u201d Under Section 13-1-147, a bidder can \"withdraw its bid before award.\u201d A \u201cmultiple source award\u201d may be made \u201cwhen awards to two or more bidders or offerors are necessary.\" Section 13-1-153.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Ronald J. VanAmberg, Roth, VanAmberg, Rogers, Ortiz, Fairbanks & Yepa, LLP, Santa Fe, NM, for Appellees.", "Walter G. Lombardi, Risk Management Division Legal Bureau, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2001-NMCA-066\n31 P.3d 381\nRENAISSANCE OFFICE, LLC and Michael Branch, Petitioners-Appellees, v. STATE of New Mexico, GENERAL SERVICES DEPARTMENT, PROPERTY CONTROL DIVISION, Respondent-Appellant.\nNo. 21,570.\nCourt of Appeals of New Mexico.\nJuly 18, 2001.\nCertiorari Denied, No. 27,075, Aug. 23, 2001.\nRonald J. VanAmberg, Roth, VanAmberg, Rogers, Ortiz, Fairbanks & Yepa, LLP, Santa Fe, NM, for Appellees.\nWalter G. Lombardi, Risk Management Division Legal Bureau, Santa Fe, NM, for Appellant." }, "file_name": "0723-01", "first_page_order": 761, "last_page_order": 769 }