Speedishuttle v. Robert's Complaint

1. Of Counsel:
BAYS LUNG ROSE & HOLMA
A. BERNARD BAYS 0969-0
LEINAALA L. LEY 9710-0
Topa Financial Center
700 Bishop Street, Suite 900
Honolulu, Hawai'i 96813
Telephone: (808) 523-9000
Attorneys for Plaintiff
SPEEDISHUTTLE, LLC
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI'I
SPEEDISHUTTLE, LLC, ) CIVILNO.
(Other Civil Action)
Plaintiff,
I. KAPAONA
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COMPLAINT; EXHffiiTS A-E; SUMMONS
vs.
ROBERT'S HAWAll, INC.; ROBERT'S
TOURS AND TRANSPORTATION, INC.;
FORD FUCHIGAMI, in his capacity as
DIRECTOR OF THE DEPARTMENT OF
TRANSPORTATION; JOHN DOES 1-10;
JANE DOES 1-10; DOE PARTNERSHIPS
1-10; DOE CORPORATIONS 1-10; DOE
ENTITIES 1-10; and DOE
GOVERNMENTAL UNITS 1-10,
Defendants.
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COMPLAINT
Plaintiff SPEEDISHUTTLE, LLC, by and through its attorneys, Bays Lung Rose &
Holma, asserts this Complaint against Defendants ROBERT'S HAWAII, INC.; ROBERT'S
TOURS AND TRANSPORTATION, INC.; FORD FUCHIGAMI in his capacity as DIRECTOR
OF THE DEPARTMENT OF TRANSPORTATION; and JOHN DOES 1-50; JANE DOES 1-
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2. 50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; and DOE ENTITIES 1-50
(collectively ("Doe Defendants") and alleges and avers as follows:
PARTIES AND RELEVANT ENTITIES
1. Plaintiff SpeediShuttle, LLC ("SpeediShuttle") is a domestic limited
liability company registered to do business in the State of Hawaii.
2. Defendant Robert's Hawaii, Inc. ("RHI") is a Hawaii corporation
registered to do business in the State of Hawaii.
3. Defendant Robert's Tours and Corporation, Inc. ("RTT") is a Hawaii
corporation registered to do business in the State of Hawaii.
4. Upon information and belief, RTT is a wholly owned subsidiary of RHI.
RTT and RHI are referred to collectively herein as "Roberts."
5. Defendant Ford Fuchigami ("Fuchigami") is the Director of the State of
Hawaii Department of Transportation ("DOT"). Fuchigami and DOT oversee the Department of
Transportation, Airports Division ("DOTA").
6. The Doe Defendants 1-50 are named herein under fictitious names for the
reason that their names and identities are presently unknown to Plaintiffs except that they are
connected in some manner with the named Defendants, or were agents, principals, partners,
officers, directors, servants, employees, employers, representatives, co-venturers, associates,
consultants, alter egos and/or representatives of Defendants, who were in some manner presently
unknown to Plaintiffs engaged in the activities alleged herein, and/or were in some way
responsible for the injuries or damages to Plaintiffs, and/or who are in some manner related to
the named Defendants. Plaintiffs will substitute the true names and identities, capacities, acts
and omissions of Doe Defendants when the same are ascertained.
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3. JURISDICTION AND VENUE
7. This Court has jurisdiction over this lawsuit pursuant to Hawaii Revised
Statutes ("HRS") § 603-21.5(a)(3).
8. Venue is proper in this Court pursuant to HRS §§ 603-1(1) and 603-36(5),
because all material events occurred in the City and County of Honolulu, State of Hawaii.
THE REQUEST FOR PROPOSALS
9. SpeediShuttle currently operates the on-demand shuttle service concession
at the Honolulu International Airport ("HNL On-Demand Shuttle Service Concessi.on") pursuant
to a contract with the DOT that is set to expire on October 15,2017.
10. On or around March 15, 2017, DOT issued a Request for Proposals And
Concession Agreement Relating to Operation of the On-Demand Shuttle Services Concession at
Honolulu International Airport, Island of Oahu, State of Hawaii (the "RFP"). See Exhibit A.
11. As stated in the Notice to Proposers "The Concession RFP Documents
consist of and include the following items: (1) this Notice to Proposers; (2) Instructions to
Proposers; (3) Proposal Intent Package (Exhibit A); (4) Proposal Package (Exhibit B");
(5) Concession Agreement ("Exhibit C"); (6) Concession Bond ("Exhibit D"); and (7) all of the
attachments and exhibits thereto." See Exhibit A at NP-1.
12. The RFP set up a two-step process whereby interested motor carrier
operators would first submit the "Proposal Intent Package" to establish their qualifications to bid
on the concession.
13. Qualified Proposers could then submit a "Proposal Package" for
consideration by the DOT.
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4. 14. As reflected in the RFP, DOT established the following six criteria "A"
through "F" to evaluate the Proposal Packages submitted by Qualified Bidders:
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A. Qualified Proposer's Prior Successful Experience 20%
(Maximum of 4 points to be awarded by each Evaluation
Committee member; Combined maximum of 20 points to
be awarded by the five (5) member Evaluation Committee)
Demonstration of prior successful experiences in providing,
operating, managing, administering and maintaining large-scale
ground transportation services, including dispatching, scheduling
and control of ground transportation vehicles ...
B. Quality and Content of Proposed Concession
Operation, Management and Administration 20%
(Maximum of 4 points to be awarded by each Evaluation
Committee member; Combined maximum of 20 points to
be awarded by the five (5) member Evaluation Committee)
A descriptive narrative of the Qualified Propopser's proposed
Concession operation, management and administration and
scheduled airport on-demand shuttle services offered from the
Airport, a detailed proposal of how, and the manner and
methods by which each Proposer intends to implement, conduct,
comply with and satisfy the scope of work prescribed and set forth
in the Concession Agreement (Appendix C) , including proposed
locations for pickup and drop off of passengers, and additional
customer service space, the method of directing passengers to and
from the shuttle, if the Proposer also provided prearranged transportation
services, the policies and practices used to ensure that each activity is
correctly accounted for and reported ...
C. Minimum Annual Guaranteed Fee
For the First Year of the Concession
(Maximum of 4 points to be awarded by each Evaluation
Committee member; Combined maximum of 20 points to
be awarded by the five (5) member Evaluation Committee)
20%
The Qualified Proposer's proposed Minimum Annual Guaranteed
Fee for the first year of the Concession.
D. Itemized list consisting of makeup of
Proposer's Concession vehicle fleet: 15%
(Maximum of 3 points to be awarded by each Evaluation
Committee member; Combined maximum of 15 points to
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5. E.
be awarded by the five (5) member Evaluation Committee)
A descriptive list itemizing the number, make, model, year of
manufacture, and seating capacity of each Qualified Proposer's
equipment to be placed, used and operated in its Concession
vehicle fleet.
Quality and Content of Proposed Airport Shuttle
Service for Disabled individuals
(Maximum of 3 points to be awarded by each Evaluation
Committee member; Combined maximum of 15 points to
be awarded by the five (5) member Evaluation Committee)
15%
Each written Proposal should include a detailed descriptive narrative
on the manner and method by which the Qualified Proposer intends
to implement, conduct, provide and schedule Concession Services
from the Airport for those arriving passengers and other individuals
with disabilities· who are covered by the American with Disabilities
Act of 1990.
F. Quality and Content of Additional
Ideas Offered by Qualified Proposer 10%
(Maximum of 2 points to be awarded by each Evaluation
Committee member; Combined maximum of 10 points to
be awarded by the five (5) member Evaluation Committee)
Special or unique idea(s), proposal(s), approach(es) and/or process(es)
that a Qualified Proposer intends to employ or use, and any aspect of the
Concession operation which the Qualified Proposer intends to
implement to each a more efficient, customer-oriented Concession
operation ...
See Exhibit A at IP-13, IP-14.
ROBERTS' WINNING BID PROPOSAL PACKAGE
15. On May 3, 2017, DOT notified SpeediShuttle that it was a "Qualified
Proposer."
16. On May 5, 2017, SpeediShuttle submitted its Proposal Package. See
Exhibit B.
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6. 17. On or around August 3, 2017, the DOT awarded the Concession
Agreement to Roberts (the "Contract").
18. Upon information and belief, Roberts and SpeediShuttle were the only two
bidders that were qualified by DOT to submit Proposal Packages in response to the RFP. See
Exhibit B (SpeediShuttle Proposal Package), Exhibit C (Roberts Proposal Package).
19. Robert received a total score of 98 points for its Proposal Package, and
SpeediShuttle received a score of 84 points for its Proposal Package. See Exhibit D
(SpeediShuttle Score Sheet), Exhibit E (Roberts Proposal Package).
20. SpeediShuttle and Roberts each received 59 points on criteria A-C: prior
successful experience; quality of operation, management and administration; and minimum
annual guaranteed fee for the first year.
21. Therefore, Roberts won the HNL On-Demand Shuttle Service Concession
bid because of higher scores on criteria D-F: quality of vehicle fleet, quality of services related to
compliance with the Americans With Disabilities Act ("ADA"), and quality of additional
services.
22. Pursuant to the terms of its Proposal Package, Roberts promised to "begin
. the launch of its services" for the on-demand shuttle service concession utilizing a new vehicle
fleet comprised of a minimum of fifty (50) 2018 Ford Chassis Champion Challenger buses
specially equipped with certain specialized computer equipment including 40 inch monitors and
GPS tracking data that allows for real-time updates to customers and the DOT and ADA
compliant lifts on each of them (the "2018 Vehicle Fleet"). See Exhibit Cat p. 51.
23. Performance by Roberts of its promises related to ADA compliance
(criteria E) and additional services offered by Roberts such as WiFi, GPS tracking, and sale of
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7. other Roberts' tours with a fifteen percent commission to DOT using the 40 inch monitors
(criteria F) are all tied to the 2018 Vehicle Fleet.
24. Therefore, the specially equipped 2018 Vehicle Fleet is the critical
component of Roberts winning Proposal Package, which garnered higher scores only on criteria
D-F, related to the vehicle fleet including the amenities to be installed in those vehicles.
25. Pursuant to the terms of its Proposal Package, Roberts also promised to
provide island-wide service to and from the airport using the 2018 Vehicle Fleet.
26. Specifically, Roberts' Proposal Package makes the following
representations with respect to island-wide service using the 2018 Vehicle Fleet:
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(b.4.) 3 DESTINATION SERVICE AREAS
ROBERTS' designated service areas are parsed into three (3) destination service
areas:
1. Honolulu Pier, Downtown Honolulu & Waikiki
[Includes: Honolulu Pier, Downtown Honolulu and Waikiki]
ROBERTS proposes to Initially deploy up to twenty-six (26) 14-
passenger vehicles for servicing this destination service area, providing
364 seats during peak periods.
2. Southwest Oahu & Ko Olina Properties
[Includes: Leeward District, Ewa, Kapolei, Ko Olina Properties, Nanakuli,
Waianae and Makaha]
ROBERTS will initially allocate up to twelve (12} 14-passenger vehicles
for servicing this destination service area, providing 168 seats during peak
periods.
3. Other Oahu
[Includes: Honolulu District, East Honolulu, Windward, Northshore and
Central Oahu]
ROBERTS will initially allocate up to twelve (12) 14-passenger vehicles
for servicing this destination service area, providing 168 seats during peak
periods."
(b.S.) 24-HR, DAILY ISLAND-WIDE DOOR-TO-DOOR SERVICES
ROBERTS will offer 24-hr., daily Island-wide door-to-door services to all stops
regardless of location, for visitors and Local residentss. ROBERTS has the
capacity in its workforce and proposed operations to provide services to every
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8. location on Oahu for arriving and departing customers where commercial vehicles
are allowed to operate1 providing up to 700 seats during peak periods at the
beginning of the contract term. ROBERTS will analyze ridership data and load
factors accurately captured within Hudson on a daily basis, and factor in
scheduled flight arrivals/departures to adjust its deployment of vehicles for
scheduling purposes. When scheduled events are known to increase arrivals and
departures, ROBERTS will prepare and/or respond expeditiously to render
accommodations to per pax for an increase in demand.
Exhibit Cat p. 29.
27. Roberts' Proposal Package is incorporated into and made part of the
Contract.
28. Under the terms of the Contract, Roberts is required to comply with all
material terms of its Proposal Package, including (i) utilization of the specially equipped 2018
Vehicle Fleet allowing for special amenities and the resulting additional revenue for the State;
(ii) the ADA compliant lifts; and (iii) island wide shared shuttle service to and from all
locations, including non-resort destinations servicing local residents.
ROBERT'S CANNOT AND WILL NOT OPERATE THE HNL
CONCESSION IN COMPLIANCE WITH THE PROMISES MADE IN ITS PROPOSAL
29. The 2018 Vehicle Fleet will not be delivered to Oahu by the proposed start
date of October 15,2017.
30. In fact, Roberts has recently disclosed to DOT that only the first fifteen of
the promised fifty buses comprising the 2018 Vehicle Fleet will be delivered to Oahu by the end
of the year.
31. The entire 2018 Vehicle Fleet, comprised of fifty buses, will not be
delivered to Roberts until after March 31, 2018.
32. Therefore, Roberts cannot provide the services and amenities promised in
its Proposal Package before March 31, 2018, at the earliest.
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9. 33. Further, Roberts is unable or unwilling to provide island wide on-demand
shared shuttle service using the 2018 Vehicle Fleet, as promised in its Proposal Package.
34. On or around September 27, 2017, the Western Motor Tariff Bureau
("WMTB") submitted a revised tariff to the Hawaii Public Utilities Commission ("PUC") for
approval as Rate Notice No. 4908-8C, indicating new fares for Roberts Hawaii Express Shuttle
(the "Proposed Tariff').
35. On or around October 2, 2017, the WMTB submitted a Short Notice
Authority Application seeking expedited approval for the Proposed Tariff.
36. Based upon the Proposed Tariff, Roberts will on provide on demand
shared shuttle service using the 2018 Vehicle Fleet to and from: (1) Waikiki Resorts; (2) the
Honolulu pier; (3) the Kahala Resort; (4) Koolina Resorts; and (5) the Turtle Bay Resort.
37. Roberts will not actually provide island-wide shared shuttle service for
non-resort destinations local residents.
38. On October 4, 2017, SpeediShuttle filed a tariff protest with the PUC
because the Proposed Tariff discriminates between visitors and local residents.
39. Specifically, the Proposed Tariff provides customers traveling to and from
resort destinations with a shared-ride option, but provides customers traveling to non-resort
destinations with a per vehicle option, with seating capacity similar to a taxi cab.
40. The lack of a shared-ride tariff option will result in higher priced fares for
residents and visitors traveling to non-resort destinations.
41. Absent the promised 2018 Vehicle Fleet, and its associated amenities,
Roberts and SpeediShuttle received identical scores on their Proposal Packages.
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10. 42. Award of the HNL On-Demand Shuttle Service Concession to Roberts on
the current facts known to DOT is arbitrary and capricious because (i) Roberts cannot provide
on-demand shuttle service using the 2018 Vehicle Fleet as promised in its Proposal Package until
March 31, 2018, at the earliest and not "at the launch of its services" as promised in its Proposal
Package, and (ii) Roberts does not intend to provide the island-wide shared shuttle service
promised in its Proposal Package.
43. This Court should enjoin Roberts from operating the HNL On-Demand
Shuttle Service Concession until it is able to: (i) deliver the service promised in its Proposal
Package using the promised 2018 Vehicle Fleet; and (ii) provide island-wide shared shuttle
service to local residents as promised in its Proposal Package.
44. Alternatively, this Court should order DOT to rescind and cancel the
Contract with Roberts, and to reissue the RFP for the HNL On-Demand Shuttle Service
Concession, because the bid process is defective, arbitrary and capricious, and violates HRS
Chapter 102.
COUNT I
(Injunctive Relief)
45. SpeediShuttle repeats, realleges and incorporates by reference the
allegations of the preceding paragraphs as if fully set forth herein.
46. DOT awarded the Contract for operation of the HNL On-Demand Shuttle
Service Concession to Roberts based on the high score it received on its Proposal Package.
47. Currently, Roberts is unable or unwilling to provide the service promised
in its Proposal Package using the 2018 Vehicle Fleet before March 31 2018, at the earliest.
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11. 48. Further, Roberts is unable or unwilling to provide island wide on-demand
shuttle service to local residents even after it receives the 2018 Vehicle Fleet, as reflected in its
Proposed Tariff filed with the PUC.
49. SpeediShuttle has agreed to continue to operate the on-demand shuttle
service until March 31, 2018, under its existing Concession Agreement, in order to give Roberts
time to comply with the terms of its proposal.
50. The Court should issue an order enjoining Roberts from operating the
HNL On-Demand Shuttle Service Concession until it is able to: (i) deliver the service promised
in its Proposal Package using the promised 2018 Vehicle Fleet; and (ii) provide shared shuttle
services to and from the airport, to all destinations island wide.
COUNT II
(Rescission And Cancellation)
51. SpeediShuttle repeats, realleges and incorporates by reference the
allegations of the preceding paragraphs as if fully set forth herein.
52. DOT awarded the Contract for operation of the HNL On-Demand Shuttle
Service Concession to Roberts based on the high score it received on its Proposal Package.
53. Currently, Roberts is unable or unwilling to provide the service promised
in its Proposal Package using the 2018 Vehicle Fleet before March 31 2018, at the earliest.
54. Further, Roberts is only willing to provide on-demand shuttle service
using the 2018 Vehicle Fleet as promised in its Proposal Package, to select resort destinations,
even after it receives the 2018 Vehicle Fleet, and not to local residents.
55. Absent the promised 2018 Vehicle Fleet, and its associated amenities,
Roberts and SpeediShuttle received identical scores on their Proposal Packages.
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12. 56. Award of the HNL On-Demand Shuttle Service Concession to Roberts on
the current facts known to DOT is arbitrary and capricious because: (i) Roberts cannot provide
on-demand shuttle service using the 2018 Vehicle Fleet as promised in its Proposal Package until
March 31,2018, at the earliest, and (ii) Roberts does not intend to provide the island-wide shared
shuttle service to local residents as promised in its Proposal Package-.
57. Accordingly, in light of the facts now known to the DOT, SpeediShuttle is
entitled to an order from this Court rescinding and canceling the Contract between Roberts and
DOT, and ordering DOT to reissue the RFP.
COUNT III
(Violation Of HRS § 102-9)
58. SpeediShuttle repeats, realleges and incorporates by reference the
allegations of the preceding paragraphs as if fully set forth herein.
59. HRS Section 102-9, governing the award of concessions, provides that
concession contracts "shall be made with the highest responsible bidder."
60. HRS Section 102-15 states: "After May 31, 1959, any contract awarded or
executed in violation of sections 102-1 to 102-12 shall be void."
61. DOT awarded the Contract for operation of the HNL On-Demand Shuttle
Service Concession to Roberts based on the high score it received on its Proposal Package.
62. Currently, Roberts is unable or unwilling to provide the service promised
in its Proposal Package using the 2018 Vehicle Fleet before March 31 2018, at the earliest.
63. Further, Roberts is unable or unwilling to provide island-wide shared
shuttle service using the 2018 Vehicle Fleet, as promised in its Proposal Package, except to
select resort destinations, even after it receives the 2018 Vehicle Fleet, and not to local residents.
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13. 64. Absent the promised 2018 Vehicle Fleet, and its associated amenities,
Roberts and SpeediShuttle received identical scores on their Proposal Packages.
65. Based on the record, DOT cannot determine who is the "highest
responsible bidder" within the meaning of HRS Chapter 102 because the terms of Roberts'
Proposal Package have been materially altered by its inability and/or unwillingness to operate the
HNL ON-Demand Shuttle Service Concession using the 2018 Vehicle Fleet promised in its
Proposal Package.
66. Accordingly, in light of the facts now known to the DOT, SpeediShuttle is
entitled to an order from this Court rescinding and canceling the Contract between Roberts and
DOT, and ordering DOT to reissue the RFP, so that it can determine who is the highest bidder in
conformance with HRS § 102-9.
WHEREFORE, Plaintiff respectfully prays that judgment be entered in its favor
and against Defendants as follows:
A. That the Court enter an order enjoining Roberts from operating the HNL
On-Demand Shuttle Service Concession until it is able to deliver the service promised in its
Proposal Package, including the minimum 50 2018 Vehicle Fleet and shared-shuttle airport
transfers to all destinations island wide using the 2018 Vehicle Fleet;
B. In the alternative, that the Court enter an order: (i) rescinding and canceling
the Contract between Roberts and DOT; (ii) ordering DOT to reissue the RFP; and (iii) ordering
the DOT to award the HNL On-Demand Shuttle Service Concession to the highest bidder
pursuant to HRS § 102-9; and
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C. For such other and further relief as this Court deems just and equitable.
DATED: Honolulu, Hawaii,~ :]I ,2017.
~~~LEINAALA L. LEY
Attorneys for Plaintiff
SPEEDISHUTTLE, LLC
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