Strict Enforcement of Procurement-Code Exhaustion and Prevailing-Party Fees: Commentary on JBG Memorial, LLC v. State of Alaska

Strict Enforcement of Procurement-Code Exhaustion and Prevailing-Party Fees: Commentary on JBG Memorial, LLC v. State of Alaska

I. Introduction

JBG Memorial, LLC v. State of Alaska, Department of Transportation and Public Facilities, and Department of Family and Community Services, No. S‑18934 (Nov. 14, 2025), is a significant Alaska Supreme Court decision at the intersection of administrative law, public procurement, and fee-shifting under Civil Rule 82.

The dispute arose from the State’s decision to relocate the Department of Family and Community Services (DFCS) from its long-time office space at JBG Memorial’s downtown Anchorage building to a new site at Anchorage Business Park, under a single source procurement waiver that bypassed competitive sealed bidding. JBG, the incumbent landlord, sued in superior court to invalidate the new lease and preserve its own relationship with the State—but it had never invoked the administrative remedies provided in Alaska’s procurement code.

The central issues were:

  • Whether JBG’s failure to exhaust the statutory administrative remedies under the procurement code could be excused on theories of lack of meaningful access, bias, futility, or irreparable harm; and
  • Whether the State could be treated as the “prevailing party” entitled to attorney’s fees under Civil Rule 82 when the case was dismissed without prejudice for failure to exhaust.

The Alaska Supreme Court affirmed dismissal of JBG’s suit, holding that:

  • The procurement code’s administrative processes for contract claims and bid protests had to be exhausted before resort to court; and
  • On the facts JBG alleged (taken as true), none of the recognized grounds for excusing exhaustion applied.

The Court also affirmed the award of prevailing-party attorney’s fees to the State, despite the dismissal being without prejudice, emphasizing that litigants who bypass mandatory administrative procedures may be required to bear their opponent’s legal costs.

Doctrinally, the case tightens Alaska’s exhaustion-of-remedies doctrine in procurement disputes and clarifies several important points:

  • Delay or opacity in public-records responses does not alone constitute denial of “meaningful access” to administrative review;
  • The fact that the same commissioner both approved a procurement decision and would review it on appeal does not, by itself, show disqualifying bias or make exhaustion futile;
  • Ordinary lost rent and financing difficulties are not “irreparable harm” sufficient to bypass administrative processes; and
  • A defendant may be a prevailing party for Rule 82 purposes when a case is dismissed for the plaintiff’s failure to exhaust, even if the dismissal is without prejudice.

II. Summary of the Opinion

A. Factual Background

In 2008, JBG Memorial, LLC (JBG) leased its downtown Fourth Avenue office building to what is now DFCS for 15 years, with three five-year renewal options. The lease provided that failure to renew would result in a month-to-month holdover tenancy.

As the February 2023 lease expiration approached, DFCS sought to move to Anchorage Business Park. Because state office leases are normally procured via competitive sealed bidding under AS 36.30.100, DFCS requested a single source procurement waiver under AS 36.30.300, citing building maintenance concerns at JBG’s property and proximity advantages of the new location. The DOT&PF commissioner approved the waiver in August 2022.

In October 2022, a DOT&PF contracting officer informed JBG that DFCS would not exercise its renewal options and intended to vacate during the first quarter of 2023, remaining on a month-to-month holdover only if procurement of the new space was not completed by lease expiration. JBG asked for more detail about the new space and the procurement process; the officer declined, stating he could not provide more information until the new contract was in place.

JBG filed a public-records request in January 2023, but the State did not respond before the JBG lease expired in February. DFCS then continued as a month-to-month tenant at JBG’s property. In June 2023, pursuant to the previously approved single source waiver, DOT&PF executed a new lease with JL ABP, LLC (the “JL lease”) for the Anchorage Business Park premises. Two days later, the State released the records JBG had requested.

B. Procedural History

In July 2023, JBG filed a superior court complaint seeking:

  • To enjoin DOT&PF and DFCS from “terminating” the JBG lease;
  • To have the JL lease declared void; and
  • To compel the State to “adhere to proper bid solicitation procedures.”

JBG also moved for a preliminary injunction to prevent the State from leaving the Fourth Avenue building while litigation was pending, claiming irreparable harm in the form of lost rent and lost opportunity to bid on the new lease.

The State moved to dismiss, arguing JBG had failed to exhaust its administrative remedies. JBG admitted that it had not exhausted but argued exhaustion was excused. The superior court divided JBG’s allegations into:

  1. Claims related to the original JBG lease (a contract awarded to JBG under the procurement code), governed by AS 36.30.620 (the “contract claims” provision); and
  2. Claims related to the JL lease (a contract awarded to another vendor), governed by AS 36.30.560 (the “protest” provision).

Applying the exceptions recognized in Bruns v. Municipality of Anchorage, 32 P.3d 362 (Alaska 2001)—lack of meaningful access, bias, futility, or irreparable harm—the superior court held that none excused JBG’s non-exhaustion. It dismissed the case and later awarded the State attorney’s fees as the prevailing party under Rule 82.

JBG appealed, challenging both the exhaustion ruling and the prevailing party designation.

C. Issues on Appeal

  1. Did the superior court err, as a matter of law, in concluding that JBG’s failure to exhaust administrative remedies under the procurement code was not excused?
  2. Did the superior court abuse its discretion in awarding attorney’s fees to the State as the prevailing party when the complaint was dismissed without prejudice?

D. Holdings

The Alaska Supreme Court unanimously affirmed:

  • Exhaustion: JBG’s failure to invoke administrative procedures under AS 36.30.620 (for its own lease claims) and AS 36.30.560 (for protesting the JL lease) was not excused. The facts alleged, even if fully true, did not demonstrate lack of meaningful access, bias, futility, or irreparable harm.
  • Prevailing Party / Fees: The State was properly deemed the prevailing party under Rule 82 and awarded fees, notwithstanding that the dismissal was without prejudice and JBG retained the ability to pursue administrative remedies.

III. Legal Framework

A. The Alaska Procurement Code and Relevant Provisions

The case is rooted in Alaska’s procurement code (AS 36.30), which contains distinct mechanisms for:

  • Acquiring leases: AS 36.30.080(a) assigns responsibility to DOT&PF for leasing office space for state agencies. AS 36.30.100(a) generally requires such leases to be procured through competitive sealed bidding.
  • Single source procurement: AS 36.30.300 allows bypassing competitive bidding when the DOT&PF commissioner finds (1) that it is not practicable to award by competitive sealed bid, and (2) that a single source procurement is in the State’s best interest.
  • Contractor claims: AS 36.30.620 governs “claims concerning a contract awarded under this chapter” made by the contractor to the State.
  • Bid protests: AS 36.30.560 allows an “interested party” to protest the award or proposed award of a contract to another party.
  • Administrative appeals and judicial review: AS 36.30.620(d) and .590(a) permit appeals to the DOT&PF commissioner; AS 36.30.685(a) authorizes appeals of the commissioner’s final decision to the superior court.
  • Stay and remedies in protests: AS 36.30.575 authorizes the procurement officer to stay the award if a protest is filed; AS 36.30.585(a) requires the officer to implement an “appropriate remedy” if the protest is sustained, including potentially a new competitive process.
  • Criminal liability for misrepresentation: AS 36.30.687(d) criminalizes certain misrepresentations made “through a trick, scheme, or device” in relation to procurement.

Together, these provisions create a comprehensive administrative scheme for resolving disputes arising from state contracting—including leases—and channeling them through specialized procurement officers and the DOT&PF commissioner before involving the courts.

B. The Exhaustion of Administrative Remedies Doctrine

Alaska law generally requires parties to exhaust available administrative remedies before seeking judicial relief when a statute or regulation provides for such review. The Court cites RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056, 1061 (Alaska 2015) and Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles, 288 P.3d 446, 450 (Alaska 2012) for the principle that exhaustion “is required if a statute or regulation provides for administrative review.”

In Bruns v. Municipality of Anchorage, the Court recognized that exhaustion may be excused in narrow circumstances:

  • Lack of meaningful access to administrative procedures;
  • Bias in the administrative process;
  • Futility; or
  • Risk of irreparable harm if the administrative route is followed.

Those exceptions are interpreted strictly; the burden is on the plaintiff to plead or demonstrate facts that fit within them.

C. Standards of Review

The Court applied:

  • De novo review to the grant of the State’s Rule 12(b)(6)-type motion to dismiss, taking all facts in the complaint as true and drawing all reasonable inferences in JBG’s favor (citing Catholic Bishop of Northern Alaska v. Does 1-6, 141 P.3d 719 (Alaska 2006), Krause v. Matanuska-Susitna Borough, 229 P.3d 168 (Alaska 2010)); and
  • De novo review to the purely legal question whether the facts, as alleged, could excuse exhaustion (drawing on Winterrowd, Bruns, and State v. Beard, 960 P.2d 1 (Alaska 1998)).

The prevailing party and attorney’s fees determination is reviewed for abuse of discretion and will be reversed only if “manifestly unreasonable,” citing Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1123 (Alaska 2012).

IV. Detailed Analysis of the Court’s Reasoning

A. Characterizing JBG’s Claims: Contract Claims vs. Bid Protests

The Court endorsed the superior court’s bifurcation of JBG’s claims:

  1. JBG lease claims: These concerned the State’s conduct under the existing lease with JBG—a contract awarded under the procurement code. Such claims must be pursued as “contract claims” under AS 36.30.620. That statute requires the contractor (here, JBG) to:
    • File a written claim with the procurement officer;
    • Obtain a written decision within 90 days; and
    • Appeal any adverse decision to the DOT&PF commissioner and then, after a final agency decision, to the superior court (AS 36.30.685(a)).
  2. JL lease claims: These challenged the State’s decision to lease space from another landlord (JL ABP, LLC) pursuant to a single source waiver. That dispute is a classic “bid protest” governed by AS 36.30.560, which allows “an interested party” (including a disappointed incumbent) to protest an award to another vendor, and then, under AS 36.30.590(a), appeal to the commissioner.

This distinction has significant consequences: the same commissioner ultimately reviews both types of administrative appeals, but the statutory triggers, timelines, and types of initial decision-makers (claims vs. protests) differ. JBG failed to invoke either pathway.

B. Lack of Meaningful Access

Under Bruns, exhaustion may be excused when a party lacks “meaningful access” to administrative review. The Court notes that its cases equate meaningful access with adequate notice of how to invoke the administrative process, referencing Hymes v. DeRamus, 222 P.3d 874 (Alaska 2010).

JBG argued it lacked meaningful access because:

  • The State declined to share details about the single source waiver and new lease when JBG inquired in October 2022; and
  • The State delayed responding to JBG’s public records request until after the JL lease was signed.

The Court was unpersuaded:

  • By October 2022, JBG was clearly on notice that:
    • DFCS would not renew the lease; and
    • DFCS intended to vacate around the time of expiration.
    That notice was sufficient to trigger a claim under AS 36.30.620 concerning non-renewal or alleged breaches of the JBG lease. JBG did not file such a claim.
  • By June 2023, JBG admits it knew of the single source waiver’s approval and the execution of the JL lease. At that point, AS 36.30.560 and related provisions provided a clear path to file a protest, request a stay, and seek remedial relief. JBG did not attempt this route either.
  • The delayed release of records did not “block” JBG from accessing the mechanisms; rather, JBG simply chose not to use them, and did not allege that the procurement code’s procedures themselves were unclear or hidden.

Significantly, the Court treats meaningful access as concerned with access to procedures, not access to every detail of the opposing party’s alleged misconduct. Even if the State was less than forthcoming about its intentions or internal rationale, that did not prevent JBG from filing a claim or protest once it knew the State was not renewing and later, that a new lease had been executed.

C. Alleged Bias in the Administrative Process

Exhaustion may be excused if the administrative decision-maker is so biased that the process is not fair. JBG advanced two main bias theories:

  • DFCS had generated “derogatory and often misleading communications” about JBG and its building, allegedly tainting the State’s view of JBG; and
  • The same DOT&PF commissioner who approved the single source waiver would decide the administrative appeal, and therefore could not be neutral; JBG even suggested the commissioner might face criminal exposure if he reversed himself.

The Court rejected both:

  1. Derogatory communications: JBG did not allege that such communications implicated or involved the commissioner who would decide any appeal. They were, at most, evidence that certain agency staff or DFCS personnel had prejudged the situation; they did not show that the ultimate appellate officer—the commissioner—was biased.
  2. Commissioner as both approver and reviewer: The Court relied on Standard Alaska Production Co. v. State, Dep’t of Revenue, 773 P.2d 201 (Alaska 1989). In that case, the commissioner had received a strong opinion from the Attorney General undermining the taxpayer’s statute-of-limitations defense, yet the Court still required exhaustion because the commissioner expressed a willingness to consider arguments and evidence in a formal proceeding.
    • Here, the commissioner’s prior approval of the single source waiver made it “highly possible” that he would reaffirm that decision, but it did not demonstrate he had completely closed his mind to reconsideration.
    • Administrative systems often assign appellate review to agency heads who have participated in earlier stages of a policy or decision; that alone does not establish unconstitutional or disqualifying bias absent additional evidence of actual prejudice.
  3. Criminal liability allegation: JBG argued that the commissioner would face criminal liability under AS 36.30.687(d) if he reversed his earlier approval, supposedly admitting prior fraud. The Court called this legally inaccurate:
    • AS 36.30.687(d) penalizes misrepresentation “through a trick, scheme, or device.”
    • A subsequent reversal could easily be based on new evidence, corrected legal analysis, or recognition of overlooked facts—none of which necessarily imply prior fraud.
    • Thus, the specter of criminal liability did not make the commissioner irredeemably biased or make an appeal futile.

Taken together, these holdings underscore that claims of bias must be specific, directed at the actual adjudicator, and show an unwillingness to fairly consider the issues—not just prior involvement or institutional alignment with the earlier decision.

D. Futility and Irreparable Harm

JBG attempted to invoke two intertwined exceptions: futility (it allegedly could not obtain relief in time) and irreparable harm (lost rent, impaired refinancing, and loss of opportunity to bid).

1. Futility based on timing

The superior court assumed for purposes of the motion that:

  • JBG did not receive notice of the waiver or the JL lease before that lease was signed;
  • JBG could not have obtained a final administrative decision voiding the waiver before the JL lease was executed.

JBG argued these assumptions showed that any administrative appeal would have been functionally futile, because the JL lease would already have been in place.

The Supreme Court disagreed that this established futility:

  • Futility is not established merely because a preferred remedy cannot be obtained on a preferred timeline.
  • Once JBG learned of the JL lease in June 2023, it could still have initiated a protest or claim; the code empowers procurement officers to stay the award (AS 36.30.575) and to implement “appropriate remedies” (AS 36.30.585(a)), including potentially voiding a contract or re-bidding.
  • JBG provided no factual allegation suggesting that, had it filed administratively, the officer or commissioner would have refused to exercise their statutory remedy powers or that those powers were illusory.

2. Irreparable harm: lost rent, refinancing, and opportunity to bid

JBG alleged that moving DFCS out of its building would cause:

  • Lost rental income;
  • Inability to refinance the property in the absence of a tenant; and
  • Loss of the opportunity to competitively bid on the new lease.

The Court treated these as follows:

  • Lost rent and impaired refinancing: These are pecuniary harms—i.e., they can be quantified in money. As the Court noted, citing State v. Galvin, 491 P.3d 325, 333 (Alaska 2021) and Kluti Kaah Native Village of Copper Center, 831 P.2d 1270 (Alaska 1992), irreparable harm is harm for which “no certain pecuniary standard exists for the measurement of damages.” Here:
    • If JBG had a viable contract claim (e.g., wrongful failure to exercise an option or breach of notice provisions), it could seek compensatory damages through the procurement claim process and, ultimately, in court after exhaustion (see AS 36.30.620(a)).
    • The inability to refinance is derivative of the loss of rental income; it too would be compensable as part of a contract-damages theory.
  • Loss of opportunity to bid: JBG argued that failing to obtain administrative relief before the JL lease was signed would forever deprive it of the chance to compete. The Court noted:
    • A properly pursued protest could have produced a stay of award and a remedial order requiring a competitive process, potentially restoring that opportunity.
    • JBG’s theory implicitly assumed the State could be compelled to remain in a holdover or renew the JBG lease pending procurement; JBG had conceded in the superior court that it “could not force the State to remain in holdover status.”

The Court therefore concluded that the harms alleged were either reparable by money damages through the existing administrative-then-judicial process or were speculative and unsupported. Neither sufficed to excuse exhaustion.

E. Meaning of Dismissal and the Path JBG Did Not Take

A critical underlying theme is that the Court insists on the integrity of the procurement code’s dispute-resolution mechanisms. JBG:

  • Never filed a contract claim under AS 36.30.620 concerning non-renewal or holdover issues;
  • Never filed a protest under AS 36.30.560 once it learned of the waiver and JL lease; and
  • Immediately resorted to the courts seeking injunctive and declaratory relief on procurement issues.

The Court’s message is clear: when the legislature provides a detailed administrative scheme like the procurement code, litigants must use it, and courts will not lightly excuse non-compliance.

F. Prevailing Party Status and Attorney’s Fees Under Civil Rule 82

With the complaint dismissed for failure to exhaust, the State sought attorney’s fees under Alaska Civil Rule 82(b)(2), which provides that where the prevailing party recovers no money judgment and the case is resolved without trial, the court “shall award” 20% of its necessarily incurred, actual fees.

The key question became: can a defendant be a “prevailing party” when the case is dismissed without prejudice, leaving the door open to future litigation or administrative action?

The Court answered yes, relying on State v. Johnson, 958 P.2d 440 (Alaska 1998) and Hart v. Wolff, 489 P.2d 114 (Alaska 1971). In Johnson, the Court held that when a case is dismissed because of one side’s delay or intransigence, the other side can be treated as the prevailing party for Rule 82 purposes, even though the dismissal may not forever bar refiling.

The Court reasoned:

  • JBG completely failed to discharge its duty to exhaust; it did not even attempt to invoke the administrative remedies.
  • Requiring the State to litigate a superior court action that never should have been filed imposed unnecessary costs.
  • A fee award penalizes this inefficiency and deters future litigants from bypassing the statutory process, implementing the policy rationale of Johnson.

The superior court’s designation of the State as the prevailing party, and its corresponding Rule 82 award, were therefore within its discretion and not “manifestly unreasonable.”

V. Precedents Cited and Their Influence

A. Bruns v. Municipality of Anchorage, 32 P.3d 362 (Alaska 2001)

Bruns is the linchpin for the exceptions to exhaustion. It articulated the four recognized grounds for excusal: lack of meaningful access, bias, futility, and irreparable harm. In JBG Memorial, the Court:

  • Expressly adopts the Bruns exceptions and its formulation (32 P.3d at 371 n.46);
  • Applies each test strictly to JBG’s allegations; and
  • Emphasizes that the burden is on the litigant to allege concrete facts fitting within those narrow windows.

The decision does not formally modify Bruns, but it gives the exceptions a narrow, procurement-context application that future litigants will have to overcome with specific, robust factual allegations.

B. Standard Alaska Production Co. v. State, Dep’t of Revenue, 773 P.2d 201 (Alaska 1989)

Standard Alaska dealt with whether a taxpayer had to exhaust administrative remedies when the revenue commissioner had already expressed an inclination to rely on an Attorney General opinion against the taxpayer’s position. The Court still required exhaustion, stressing:

  • The commissioner’s stated willingness to consider the taxpayer’s arguments; and
  • The importance of developing a full record and giving the agency a chance to correct its own decisions.

In JBG Memorial, this precedent supports the conclusion that the DOT&PF commissioner’s prior approval of a single source waiver does not, by itself, establish bias or futility; prior involvement is not enough.

C. Hymes v. DeRamus, 222 P.3d 874 (Alaska 2010)

Hymes addressed a prisoner’s failure to exhaust prison grievance procedures where he claimed not to have been provided rules and regulations. The Court held that where an inmate lacks notice of available grievance procedures, exhaustion may be excused.

JBG Memorial uses Hymes to frame “meaningful access” as essentially about notice of procedures. JBG, as a business contracting with the State under the procurement code, is presumed to know the existence of AS 36.30’s remedies and to have the capacity to consult counsel. It therefore could not credibly claim a lack of procedural notice akin to a prisoner not given a grievance manual.

D. Winterrowd, RBG Bush Planes, and Statutory Exhaustion

Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles, 288 P.3d 446 (Alaska 2012) and RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056 (Alaska 2015) reinforce the principle that when a statute explicitly provides for administrative review, exhaustion is generally mandatory.

In JBG Memorial, these cases:

  • Support the baseline rule that the procurement code’s review procedures are not optional; and
  • Explain why the Court applies de novo review when the superior court decides excusal as a matter of law on undisputed facts.

E. State v. Galvin, 491 P.3d 325 (Alaska 2021) and Irreparable Harm

Galvin reaffirmed that irreparable harm is harm not measurable by any “certain pecuniary standard.” In JBG Memorial, the Court applies this to hold that:

  • Lost rent; and
  • Financing difficulties linked to lost rent

are classic examples of harms that can be measured and compensated by money damages. They thus do not qualify as irreparable injury sufficient to bypass administrative remedies or justify injunctive relief in lieu of exhaustion.

F. State v. Johnson, 958 P.2d 440 (Alaska 1998) and Hart v. Wolff, 489 P.2d 114 (Alaska 1971)

Johnson and Hart stand for the proposition that dismissal—often for reasons attributable to a party’s conduct (e.g., delay, failure to prosecute)—can still produce a prevailing party entitled to fees, even though the merits have not been adjudicated.

In JBG Memorial, the Court extends that logic to dismissals for failure to exhaust:

  • JBG’s failure to use the statutory process forced the State to litigate prematurely in superior court.
  • Even though JBG can still pursue administrative remedies and possibly return to court, the State “successfully defended” the present action.

The case thus reinforces that prevailing-party status focuses on the case as litigated, not on potential future proceedings.

VI. Impact and Implications

A. For Incumbent Landlords and State Contractors

The case has sharp lessons for businesses that lease property to the State or otherwise contract under the procurement code:

  • Know and use the procurement code’s remedies: If the State fails to renew, changes terms, or awards a contract to someone else, the first step is not to sue in superior court. The first step is:
    • AS 36.30.620 for contract claims against the State; and/or
    • AS 36.30.560 for protests of awards to others.
  • Do not count on “exhaustion excuses” to rescue late or strategic bypasses: The Court’s narrow reading of Bruns’s exceptions suggests that exhaustion is a high bar; general dissatisfaction with agency conduct or strategic desire for speed will not suffice.
  • Prepare for potential fee exposure: Filing a premature civil action in lieu of using administrative procedures can expose contractors to a Rule 82 fee award if the case is dismissed for non-exhaustion.

B. For Agencies and the Commissioner

For DOT&PF and other agencies, the decision:

  • Reaffirms the centrality of the commissioner’s role as the final administrative adjudicator of both contract claims and protests, even when the commissioner is also an original decision-maker (e.g., approving single source waivers).
  • Provides comfort that prior approval of a procurement decision does not disqualify the commissioner from later hearing an appeal of that decision, absent more specific evidence of bias.
  • Underscores the need for clear procedural paths: While the Court held that JBG had meaningful access, agencies should ensure that contractors and bidders are routinely informed of claims/protests mechanisms to avoid future “meaningful access” disputes.

C. For Litigation Strategy in Procurement Disputes

JBG Memorial will likely shape litigation strategies:

  • Administrative-first approach: Counsel will need to treat procurement disputes as primarily administrative matters in the first instance, reserving judicial review for after a full record is created and a commissioner’s final decision is issued.
  • Careful pleading of exceptions: When truly extraordinary circumstances exist (e.g., systemic denial of access to procedures, clear bias of the actual adjudicator, or concrete irreparable harm beyond money damages), counsel must plead specific facts, not generalized suspicions or grievances.
  • Use of stays and remedies: The opinion highlights that the procurement code’s stay (AS 36.30.575) and remedial (AS 36.30.585) provisions are real tools. Litigants contesting awards have to ask procurement officers and the commissioner to use these tools before asking courts to issue injunctions.

D. Public Records, Secrecy, and Procurement Transparency

Although not directly framed as a public-records case, JBG Memorial sends a notable signal: State delay in responding to a records request about procurement decisions will not, standing alone, excuse failure to exhaust. Contractors must proceed with administrative remedies as soon as they know enough to frame a claim or protest, even without full documentary discovery.

However, agencies would be well advised to avoid “sandbagging”—withholding procurement details until after finalization—because:

  • It can invite allegations of bad faith or bias (even if those allegations ultimately fail); and
  • It may still raise due process or Bruns-style meaningful access questions in a more egregious case than this one.

VII. Complex Concepts Simplified

A. Exhaustion of Administrative Remedies

“Exhaustion” means:

  • If a law gives you a specific administrative process to challenge a government decision, you usually must complete that process before going to court.
  • Courts want agencies to have a chance to correct their own mistakes and to build a record first.
  • If you skip this step, your lawsuit is typically dismissed.

B. Single Source Procurement Waiver

Normally, the State must use competitive sealed bidding to procure leases or contracts. A “single source procurement waiver” allows the State to contract directly with one provider without competition if:

  • It is impracticable to use competitive bidding; and
  • This direct award is in the State’s best interest.

The DOT&PF commissioner must approve this waiver. That approval is itself subject to internal administrative challenge (via protests and claims) and then to judicial review, but only after exhaustion.

C. Contract Claims vs. Bid Protests

  • Contract claim (AS 36.30.620): Used by a contractor who already has a contract with the State and believes the State has breached that contract (e.g., by failing to pay, performing late, or not honoring an option).
  • Bid protest (AS 36.30.560): Used by an “interested party” (often a non-winning bidder or incumbent) to challenge the award or proposed award of a contract to someone else, or the terms of a solicitation.

Both types must start with the procurement officer and can be appealed to the commissioner, then to court.

D. Meaningful Access

“Meaningful access” refers to a fair and realistic opportunity to use the administrative appeal process. A party lacks meaningful access if:

  • It has no notice that the procedures exist or how to use them;
  • It is actively prevented from filing; or
  • The process is so opaque or obstructed that it is effectively unavailable.

In JBG Memorial, meaningful access was found because JBG knew the State was not renewing and later knew about the new lease and waiver; it simply chose not to file claims/protests under the procurement code.

E. Bias

“Bias” in this context means that the administrative decision-maker is not neutral—e.g., has prejudged the case, has a personal stake, or shows hostility or favoritism such that a fair hearing is impossible.

Merely having been involved in earlier aspects of the decision, or having previously expressed a preliminary view, is typically not enough to show bias, especially for high-level agency officials.

F. Futility

An administrative process is “futile” when:

  • It is virtually certain that the agency will not or cannot grant any relief; and
  • That certainty is demonstrated by clear facts (not just speculation).

Examples might include an agency openly refusing to consider a category of claims or a legal rule that bars relief. In JBG Memorial, the Court held that the mere likelihood that the commissioner would reaffirm his own decision does not amount to futility, especially when the statutes give him real remedial power.

G. Irreparable Harm

“Irreparable harm” is harm that:

  • Cannot be fixed by money damages; or
  • Cannot be measured by a clear monetary standard.

Examples might include environmental destruction, violations of constitutional rights, or loss of unique property. In this case, lost rent and lost refinancing opportunities were seen as harms that can be measured and compensated with money, so they were not “irreparable.”

H. Prevailing Party and Rule 82 Fees

Under Civil Rule 82:

  • The “prevailing party” is the one who wins on the main issue in the case as it was actually litigated.
  • Even if the case is dismissed without prejudice, if one side succeeds in getting the action dismissed (e.g., for failure to exhaust), that side can be treated as the prevailing party.
  • The prevailing party is then entitled to a percentage of its reasonable attorney’s fees.

In JBG Memorial, the State was the prevailing party because it successfully defended the suit on the ground of non-exhaustion.

VIII. Conclusion

JBG Memorial, LLC v. State of Alaska is an important reaffirmation of Alaska’s insistence that parties adhere to statutory administrative processes—especially in the specialized world of public procurement—before resorting to the courts.

The decision accomplishes several things:

  • It clarifies the scope and rigidity of the exhaustion requirement in the procurement context, emphasizing that mere dissatisfaction with agency transparency, speculative claims of bias, or ordinary financial losses will not excuse non-exhaustion.
  • It reaffirms the legitimacy of agency-head review even where the agency head participated in the original decision, so long as no particularized evidence of closed-mindedness or improper motive is shown.
  • It reinforces the remedial capacity of the procurement code itself, highlighting stay and remedy provisions that, if invoked, can provide meaningful relief without immediate judicial intervention.
  • It solidifies prevailing-party doctrine under Rule 82 by confirming that a defendant who obtains dismissal for failure to exhaust can be awarded fees, deterring plaintiffs from bypassing statutory schemes.

In the broader legal landscape, JBG Memorial strengthens administrative primacy in procurement disputes and should prompt contractors, landlords, and their counsel to approach such conflicts through the lens of the procurement code first and the courts second. Where a detailed legislative scheme exists, Alaska’s high court will expect parties to follow it meticulously, reserving its own involvement for the structured judicial review that comes after exhaustion, not for frontline oversight of procurement decisions.

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