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March 13, 2026 Get Citation Alerts Download PDF Add Note

Cleaning by Regina & Associates, LLC v. Finance and Administration Cabinet, Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0117
• Precedential Status: Non-Precedential
• Judges: Caldwell

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.5K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

RENDERED: MARCH 13, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0117-MR

CLEANING BY REGINA &
ASSOCIATES, LLC APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 23-CI-00535

FINANCE AND ADMINISTRATION
CABINET, COMMONWEALTH OF
KENTUCKY APPELLEE

OPINION
AFFIRMING

---

BEFORE: CALDWELL, L. JONES, AND TAYLOR, JUDGES.

CALDWELL, JUDGE: Cleaning by Regina & Associates, LLC (“Cleaning by

Regina”) appeals from a Franklin Circuit Court judgment upholding the denial of

three bid protests by the Finance and Administration Cabinet (“Finance Cabinet”).

We affirm.
This appeal involves application of the Kentucky Model Procurement

Code, set forth at KRS1 45A.005 et seq. Specifically, this appeal challenges

awards for state contracts subject to the competitive sealed bidding process

described in KRS 45A.080. KRS 45A.080(5) states: “The contract shall be

awarded by written notice to the responsive and responsible bidder whose bid

offers the best value.”

KRS 45A.070, which defines terms used in KRS 45A.080, provides in

pertinent part:

As used in KRS 45A.070 to 45A.180, unless the context
in which they are used clearly requires a different
meaning:

(1) “Best value” means a procurement in which the
decision is based on the primary objective of meeting
the specific business requirements and best interests
of the Commonwealth. These decisions shall be based
on objective and quantifiable criteria that shall include
price and the reciprocal preference for a resident
bidder required under KRS 45A.494 that have been
communicated to the offerors as set forth in the
invitation for bids.

...

(6) “Responsible bidder or offeror” means a person
who has the capability in all respects to perform fully
the contract requirements, and the integrity and
reliability which will assure good faith performance.

1
Kentucky Revised Statutes.

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(7) “Responsive bidder” means a person who has
submitted a bid under KRS 45A.080 which conforms
in all material respects to the invitation for bids, so
that all bidders may stand on equal footing with
respect to the method and timeliness of submission
and as to the substance of any resulting contract.

With this background in mind, we consider the undisputed facts of this case.

FACTS

Finance Cabinet is the central procurement and contracting agency for

the Commonwealth of Kentucky. KRS 45A.045(1). As such, it posts Requests for

Bids for services needed for various state agencies.

Cleaning by Regina has performed janitorial services for several state

agencies. It received a few negative performance reviews from state agencies

between 2017 and mid-2019.

In 2019 and 2020, Cleaning by Regina responded to several bid

requests posted by Finance Cabinet. Three of its bids were declined, leading

Cleaning by Regina to file three protests. See KRS 45A.285.

The bids were scored based 90 percent on price and 10 percent on

years of experience. Despite a few past negative performance reviews, Cleaning

by Regina had the highest score for all three bid requests based on price and years

of experience.

All three bid requests included a provision stating: “Past Vendor

Performance may be considered in the award of this Contract. Vendors with a

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record of poor performance in the last twelve (12) months may be found non-

responsible and ineligible for award.” The explanations for the three denials all

noted the Finance Cabinet deemed Cleaning by Regina a non-responsible bidder

due to past negative performance reviews. Thus, despite Cleaning by Regina being

the highest evaluated bidder for each of these three bid requests, it was considered

ineligible for the awards and the three contracts were awarded to other bidders.

Though Cleaning by Regina was not awarded those three contracts

due to negative performance reviews in the preceding twelve months, it was

awarded two other contracts in the same time frame because the requesting

agencies agreed to waive past performance issues. In one instance, no other

vendors had responded to the bid request.

Meanwhile, Cleaning by Regina filed protests to the three contract

awards to other bidders with the Finance Cabinet Secretary. The Secretary denied

its protests and upheld the three awards to other bidders.

Cleaning by Regina petitioned the Franklin Circuit Court for review

of the Secretary’s decision. Both Cleaning by Regina and Finance Cabinet filed

motions for summary judgment, noting the facts were undisputed.

The Franklin Circuit Court granted summary judgment in favor of

Finance Cabinet. The court noted Cleaning by Regina argued that it was denied

due process, and that Finance Cabinet acted arbitrarily.

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The court recognized that Cleaning by Regina was deemed a non-

responsible bidder for these three contracts based on past negative performance

reviews. However, it also took note that Cleaning by Regina’s bids had been

scored the highest.

The court rejected Cleaning by Regina’s allegations of being denied

due process and being subjected to arbitrary or capricious action. It found that the

Cabinet acted rationally in putting vendors on notice that past performance may be

considered and that vendors with negative performance reviews in the last twelve

months may be deemed non-responsible bidders. It also found: “The Cabinet

permitted the state agency set to receive the janitorial services the option to

recommended [sic] waiver of the rule, and when such recommendation was made,

the Cabinet abided by the agency’s request.” (Page 4 of Franklin Circuit Court

Order attached to Appellant red brief; Record on Appeal, (“R”), p. 283). So, it

found the inclusion of the past performance provision in the bid requests was not

arbitrary, capricious, or contrary to the Kentucky Model Procurement Code.

The court also disagreed with the assertions of denial of due process.

It noted Cleaning by Regina’s argument that Finance Cabinet failed to provide a

way to challenge negative performance evaluations or the reliance on these

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evaluations. However, the court took note that Finance Cabinet’s policy manual2

set forth a process whereby vendors would receive written notice of complaints

and an opportunity to respond—either by seeking informal resolution with Finance

Cabinet or the requesting agency or by filing an appeal with the Secretary. The

court found that Cleaning by Regina did not challenge the evaluations or seek

review of the evaluations from the Secretary.

The court also determined that Cleaning by Regina received due

process through the protest determination process set forth in KRS 45A.285—both

through the Secretary’s review of the three bid protests and the court’s review.

Cleaning by Regina filed a timely appeal.

ANALYSIS

Standard of Appellate Review

As the appeal is from a summary judgment granted based on the

application of law to undisputed facts, we apply the non-deferential de novo

standard of review. Motorists Mutual Insurance Company v. First Specialty

Insurance Corp., 706 S.W.3d 120, 124 (Ky. 2024) (citing Patton v. Bickford, 529

S.W.3d 717, 723 (Ky. 2016) (“When a motion for summary judgment at the trial

2
As the Franklin Circuit Court noted, Finance Cabinet’s policy manual is incorporated by
reference in 200 Kentucky Administrative Regulations (KAR) 5:021. Moreover, Finance
Cabinet’s policies may also be found on its website, https://finance.ky.gov (last visited Dec. 15,
2025).

-6-
court, and on appeal, presents only a question of law, we review de novo and give

no deference to the lower courts.”)).

Despite the non-deferential standard of review, we discern no

reversible error in the Franklin Circuit Court’s affirming the Secretary’s decision.

In reviewing the contracts awarded pursuant to the Kentucky Model

Procurement Code, the circuit court was faced with determining whether Finance

Cabinet acted arbitrarily, capriciously, or contrary to law. Laboratory Corp. of

America Holdings v. Rudolph, 184 S.W.3d 68, 73 (Ky. App. 2005).

The circuit court determined that no such arbitrary, capricious, or

unlawful action occurred considering the undisputed facts here. We agree with this

determination despite the constitutional arguments raised on appeal.

Cleaning by Regina contends that Finance Cabinet’s past performance

disqualification rule is unconstitutional if applied in an arbitrary and capricious

manner—such as to deny due process. Moreover, it argues this rule is arbitrary

and capricious, as applied, because, in its view, this is a subjective rule with no

clear standards which is subject to the whims of individuals who apply it

inconsistently.

However, despite these arguments, we conclude the circuit court did

not err in determining that Cleaning by Regina was not deprived of due process

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and that Finance Cabinet did not act in an arbitrary and capricious manner based

on the undisputed facts here.

The Circuit Court Did Not Err in Determining that Cleaning by Regina
Was Not Denied Due Process

Cleaning by Regina argues that Finance Cabinet acted arbitrarily by

denying it due process. Although it does not suggest that a full-blown evidentiary

hearing was required in the procurement process, it argues Finance Cabinet offers

no standard or guidance but simply has unfettered discretion whether to disqualify

a vendor upon evidence of prior poor performance. Cleaning by Regina asserts

that all it could do was to submit bids, which it did. It notes it was the highest-

evaluated bidder. It contends: “Only then [after submitting a bid] . . . did it learn

that [Finance Cabinet] disqualified it for perceived prior poor performance.”

(Appellant red brief, page 14).

As Finance Cabinet and the circuit court pointed out, however,

Cleaning by Regina had an opportunity to challenge the poor performance reviews

at the time they were issued but elected not to do so. Moreover, the bid requests

provided notice that past performance could be considered and that negative

performance reviews in the preceding twelve months could lead to a determination

of ineligibility. Also, Cleaning by Regina was provided hearings to challenge the

denial of its bids before the Secretary and the circuit court. Therefore, we agree

with the circuit court that Cleaning by Regina was not deprived of due process.

-8-
See TECO Mechanical Contractor, Inc. v. Commonwealth, 366 S.W.3d 386, 393

(Ky. 2012):

Procedural due process requires that some kind of
hearing be conducted before the State finally deprives a
person of his liberty or property. The requirements of
procedural due process are not intended to prevent the
State from depriving individuals of their liberty or
property; instead, they are intended to minimize
substantively unfair or mistaken deprivations of life,
liberty, or property by enabling persons to contest the
basis upon which a State proposes to deprive them of
protected interests.

(Internal quotation marks and citations omitted.) As Cleaning by Regina was not

deprived of any property interest without notice or a hearing allowing it to contest

the award of the three contracts to others, we reject its assertion that it was denied

due process.

Next, we address Cleaning by Regina’s argument regarding the

alleged lack of objective standards for determining whether contracts are awarded

to otherwise qualified vendors with past negative performance evaluations.

Purchasing Agents’ Having Discretion to Waive Past Performance
Disqualification Rule Did Not Result in Arbitrary, Capricious, or
Unlawful Action

Cleaning by Regina complains there is a lack of objective standards

for considering bids from vendors with prior negative performance evaluations,

which amounts to arbitrary, capricious, or unlawful action. It concedes that

vendors may contest negative performance evaluations. But it argues procurement

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agents have “unfettered discretion” whether to award contracts to vendors with

prior negative performance evaluations and can simply do what they want without

any “guardrails” or “constraints.” (Reply brief, pages 3-4). Moreover, Cleaning

by Regina contends that this allegedly “standardless rule is unconstitutionally

arbitrary.” (Appellant red brief, page 15) (citing South Central Bell Telephone Co.

v. Utility Regulatory Comm’n, 637 S.W.2d 649 (Ky. 1982)).

In South Central Bell, our Supreme Court reversed the Court of

Appeals and reinstated the circuit court’s injunction prohibiting the Utility

Regulatory Commission from imposing a penalty reducing a utility’s reasonable

rate of return for alleged prior poor performance. Id. at 651-52. The Court

discussed specific provisions in KRS Chapter 278 and the remedies afforded by

statute for determining rates and addressing service problems. Id. at 652-53.

Noting “the General Assembly omitted a specific provision allowing the

Commission to enforce its service cases by a reduction in a rate case[,]” id. at 653,

our Supreme Court held it was improper to reduce rates due to prior bad service:

It seems to us that there is an inherent danger in
permitting poor service as a basis for setting rates,
particularly in the imposition of a penalty which results
in a reduction of a rate which the Commission has
already found to be fair and reasonable. There are no
objective, definable standards upon which to base a
penalty. It is, at best, arbitrary and subjective. Punitive
actions should not be subject to the possible whims of
individuals, including those serving on a responsible
administrative body. In the present case, it appears that

-10-
the Commission was upset or frustrated by what it
deemed Bell’s failure to improve its service in a previous
case. Such a reaction may be justified but it is difficult to
reconcile Bell’s possible failure with the imposition of a
penalty that would cost the company tens of millions of
dollars over the years. This case is a classic example of
arbitrary and subjective judgment.

Id. at 653.

Employing similar language to that quoted above, Cleaning by Regina

argues Finance Cabinet acted arbitrarily by allowing individual procurement agents

to waive or not waive consideration of prior performance issues on whims and

without objective, definable standards.

Without expressly distinguishing South Central Bell, 637 S.W.2d 649,

Finance Cabinet responds by asserting that purchasing officers have broad

discretion to draft bid requests and to determine whether bidders are responsible.

It also argues purchasing officers’ decisions are entitled to a presumption of

correctness, citing KRS 45A.280, which provides:

The decision of any official, board, agent, or other person
appointed by the Commonwealth concerning any
controversy arising under, or in connection with, the
solicitation or award of a contract, shall be entitled to a
presumption of correctness and shall not be disturbed
unless the decision was procured by fraud or the findings
of fact by such official, board, agent or other person do
not support the decision.

Finance Cabinet also points out, the bid requests at issue expressly

recognized that purchasing agents have discretion to consider past performance

-11-
issues. The bid request documents state that prior negative performances “may” be

considered and that negative performance reviews in the past twelve months “may”

result in the vendor being considered non-responsible (and thus ineligible).

Moreover, Finance Cabinet asserts that the primary aim of the

Kentucky Model Procurement Code is to benefit the public3 and that purchasing

agents’ having discretion whether to waive past performance issues benefits the

public. It points out that Finance Cabinet often has “little or no direct knowledge

of a vendor’s performance on any particular janitorial contract.” (Appellee brief,

page 10). So, it asserts it must often rely on information provided by agencies

using janitorial services in performance reviews, which may be challenged by

vendors according to Finance Cabinet policy.

Finance Cabinet also argues that, despite any suggestion that an

entirely mandatory rule about considering past performance might be clearer or

fairer, the public benefits from the purchasing agent having discretion to consider

other factors (including price, requesting agencies’ needs, and any lack of other

bids) when determining whether to consider vendors with recent negative

performance reviews eligible for contract awards.

3
RAM Engineering & Constr., Inc. v. University of Louisville, 127 S.W.3d 579, 585 (Ky. 2003);
Ohio River Conversions, Inc. v. City of Owensboro, 663 S.W.2d 759, 760 (Ky. App. 1984).

-12-
While the Kentucky Model Procurement Code aims for treating

vendors equitably as well as benefitting the general public, see KRS 45A.010(2),

we discern nothing unlawful or inequitable in a vendor’s possibly being considered

non-responsible based on negative performance reviews within the past year. This

is especially true since vendors have an opportunity to contest negative

evaluations, and the bid requests provided notice that past performance could be

considered and that negative performance reviews in the past year could result in a

finding of non-responsibility.

Nothing in the Kentucky Model Procurement Code forbids

consideration of past performance reviews in making contract award

determinations—in contrast to the public utility context in South Central Bell, in

which our Supreme Court determined that “the question of rates should be kept

separate from the question of service” based on KRS Chapter 278 requirements.

637 S.W.2d at 654. More specifically, nothing in KRS Chapter 45A prohibits

consideration of past performance reviews in determining whether a vendor is

responsible or offers the best value.

While there is no precise mathematical formula for determining

whether a vendor with past negative performance reviews should be considered

responsible, governing statutes in this context require only that the contract be

awarded to “the responsive and responsible bidder whose bid offers the best

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value.” KRS 45A.080(5). Cleaning by Regina cites to no authority specifically

forbidding consideration of past performance in determining whether a bidder is

responsible or offers the best value. Nor does it cite authority specifically

forbidding purchasing agents from having discretion whether to waive the past

performance disqualification rule. While perhaps some vendors may disapprove of

purchasing agents’ having discretion whether to waive the performance

disqualification rule, this is a significantly different context than the utility rate

determinations at issue in South Central Bell, 637 S.W.2d 649.

Moreover, in determining which service provider to award a contract,

we cannot say it is totally irrational to allow the requesting agency an option to

waive application of the performance disqualification rule to best achieve its needs.

This is especially true in situations where there are no other bidders or where a

bidder’s other qualifications (such as offering the lowest price or the most

experience) clearly outweigh the significance of one or more recent negative

performance reviews.

Also, purchasing agents have a statutory duty to act in good faith,

KRS 45A.015(2), and are presumed to be honest, to act with integrity, and to do

their best to perform their duties in accordance with the law. Pendleton Bros.

Vending, Inc. v. Commonwealth Finance and Admin. Cabinet, 758 S.W.2d 24, 30

(Ky. 1988). Thus, purchasing agents do not have unfettered discretion to act on a

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whim and their decisions are presumed correct and should not be set aside unless

the decision resulted from fraud or findings of fact are not supported by the

evidence. Id. (quoting KRS 45A.280).

Based on the undisputed facts of this case and the lack of allegations

of fraud, we discern no reason for the circuit court to set aside the procurement

decisions at issue here.

“As a general rule the yardstick of fairness is sufficiently broad to

measure the validity of administrative action.” Boone Development, LLC v.

Nicholasville Board of Adjustment, 709 S.W.3d 88, 94 (Ky. 2024) (quoting

American Beauty Homes Corp. v. Louisville and Jefferson Cnty. Planning and

Zoning Commission, 379 S.W.2d 450, 457 (Ky. 1964)).

Choosing whether to disqualify a bidder due to recent poor

performance reviews is inherently fact-specific, and the fact that a decisionmaker

had discretion in choosing whether to waive such recent performance issues does

not vest the decisionmaker with arbitrary power, given the statutory requirement

that purchasing agents must act in good faith. We cannot say it is patently unfair to

consider a bidder’s past performance reviews when awarding contracts involving

the expenditure of taxpayer funds.

Moreover, Cleaning by Regina had the ability to ask for an

administrative review of both the negative performance reviews, which it waived,

-15-
and of the purchasing agent’s refusal to waive such past performance issues. This

provides due process and eliminates the possibility of unfairness by purchasing

agents which is so pervasive as to be truly arbitrary. In sum, we conclude the

circuit court did not err in determining that the Finance Cabinet acted in a rational

manner and did not engage in arbitrary, capricious, or unlawful action.

Further arguments raised in the briefs which have not been discussed

in this Opinion have been determined to lack merit or relevancy to our resolution

of this appeal.

CONCLUSION

For the foregoing reasons, we AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Stephen B. Pence Patrick W. McGee
Louisville, Kentucky Office of General Counsel
Commonwealth of Kentucky
Finance and Administrative Cabinet
Frankfort, Kentucky

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