of Appellate Courts Court Of Appeals
A. Diaz, Law Office of Steven A. Diaz, Washington, D.C.; and
Gary A. Van Cleve, Rob A. Stefonowicz, Bryan J. Huntington,
Larkin, Hoffman, Daly & Lindgren, Ltd., Minneapolis,
Minnesota, for respondent.
M. Baker, Monte A. Mills, Katherine M. Swenson, Greene Espel
PLLP, Minneapolis, Minnesota, for appellants City of
Rochester and Justin L. Templin.
Charles K. Maier, Richard C. Landon, Gray, Plant, Mooty,
Mooty & Bennett, P.A., Minneapolis, Minnesota, for
appellant First Transit, Inc.
L. Naughton, League of Minnesota Cities, Saint Paul,
Minnesota, for amicus curiae League of Minnesota Cities.
A. Ferche, Assistant Attorney General, Saint Paul, Minnesota,
for amici curiae Commissioner of Minnesota Department of
Administration and Commissioner of Minnesota Department of
B. Thomson, Jeffrey A. Wieland, Sara E. Porter, Fabyanske,
Westra, Hart & Thomson, P.A., Minneapolis, Minnesota, for
amicus curiae Associated General Contractors of Minnesota.
bus operator did not properly raise an appearance-of-bias
claim in its pre-bid protest of the city's
competitive-bidding-contract-award process, and therefore
forfeited its appearance-of-bias argument on appeal.
Remand to the court of appeals of alternative issues raised,
but not decided by that court, is warranted here.
City of Rochester ("the City") owns a fleet of
buses, which have been operated by appellant First Transit,
Inc. ("First Transit") since 2012. Until 2012,
however, these buses were operated by respondent Rochester
City Lines Company ("RCL"). After the contract was
awarded to First Transit, RCL challenged the City's
competitive bidding process, which we addressed in
Rochester City Lines, Co. v. City of Rochester
(RCL I), 868 N.W.2d 655 (Minn. 2015), cert.
denied, 136 S.Ct. 849 (2016). RCL has now also
challenged the City's 2016 competitive-bidding process,
which, like the 2012 process, resulted in the bus-operation
contract being awarded to First Transit.
City's appointed moderator, appellant Justin Templin
("the Moderator"), rejected RCL's pre-bid
protest. The court of appeals, however, held that the
City's Request for Proposals ("RFP") appeared
impermissibly biased against RCL, because five of the eight
members of the 2016 proposal evaluation committee had served
on the 2012 proposal evaluation committee, and RCL had
previously accused the 2012 proposal evaluation committee of
bias. Rochester City Lines Co. v. City of Rochester,
897 N.W.2d 792');">897 N.W.2d 792, 799-800 (Minn. 2017) (hereinafter
"Rochester City Lines"). The court of