Billy E. Burnett, Inc. v. Pontotoc County Bd. of Supervisors
| Docket Number: | 2004-CA-02446-COA Linked Case(s): 2004-CA-02446-SCT ; 2004-CT-02446-SCT ; 2004-CA-02446-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-21-2006 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Bid for contract - Section 31-7-13(d)(i) - Nonresident - Sections 31-7-47 and 31-3-21 Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Ishee and Roberts, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 11-08-2004 Appealed from: PONTOTOC COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: PONTOTOC COUNTY BOARD OF SUPERVISORS’ AWARD OF CONSTRUCTION CONTRACT TO HOOKER CONSTRUCTION, INC. AFFIRMED Case Number: CV-03-052A(PO) |
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| Party Name: | Attorney Name: | |||
| Appellant: | BILLY E. BURNETT, INC. |
E. STEPHEN WILLIAMS, ROBERT L. HOLLADAY |
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| Appellee: | PONTOTOC COUNTY BOARD OF SUPERVISORS | PHILLIP L. TUTOR |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Bid for contract - Section 31-7-13(d)(i) - Nonresident - Sections 31-7-47 and 31-3-21 |
| Summary of the Facts: | The Pontotoc County Board of Supervisors solicited and received four bids for a contract for the exterior repair and renovation of the Pontotoc County courthouse. The low bidder for the contract, with a bid of $914,000, was Billy E. Burnett, Inc., a nonresident contractor domiciled in Tuscaloosa, Alabama. The second-lowest bid, at $936,000, was submitted by Hooker Construction, Inc., a resident contractor based in Thaxton, Mississippi. In an order adopted by the board of supervisors, the board awarded the contract to Hooker on the basis that it submitted the best, though not the lowest, bid. Burnett appealed to the circuit court which affirmed the board of supervisors’ decision. Burnett appeals. |
| Summary of Opinion Analysis: | Section 31-7-13(d)(i) provides that a governing authority may award construction services to the lowest and best bidder. It is implicit in this language that a governing body cannot be compelled to accept a bid simply because it is the lowest, and that other factors must enter the analysis. The Mississippi Supreme Court has recognized that public authorities may, in making a determination of whether a bid is the lowest and best, take into consideration factors such as the bidder’s honesty and integrity, the bidder’s skill and business judgment, the bidder’s experience and facilities for carrying out the contract, the bidder’s conduct under previous contracts, and the quality of work previously done by the bidder. Burnett argues that because its bid was $22,000 below the next-lowest bid, its bid was by definition the lowest and best. The record shows that the board contacted Burnett’s references, that some references were very negative, and that overall, the responses indicated that Burnett’s work was mediocre. On the other hand, the board found that Hooker had been awarded construction contracts in Pontotoc County, and that Hooker’s work and reputation were known to be excellent. Especially in light of the fact that there was a mere 2.35% difference between the bids, the board of supervisors did not act arbitrarily and capriciously in awarding the contract to Hooker. The primary thrust of Burnett’s argument is that the board of supervisors awarded the contract to Hooker for the sole reason that Hooker was a resident contractor. The circuit court’s ruling was not based solely upon its determination that Hooker was entitled to a preference pursuant to sections 31-7-47 and 31-3-21. As discussed earlier, the circuit court found an independent basis for the award to Hooker, namely, that the board rightly considered the relative experience and reputation of the two firms, and made the award to Hooker after taking these factors into consideration. Therefore, whether the circuit court erred in its analysis of the preferences statutes is a question for another day. |
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