Wastewater Plant Serv. Co. v. Harrison County Util. Auth.
| Docket Number: | 2008-CA-01815-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: Griffis, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wastewater facilities - Request for proposals - Certificate of responsibility - Section 31-3-1(a) - Violation of sections 31-7-13(c)(ii) and (d)(i) - Section 31-7-13(r) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Roberts and Maxwell, JJ. Non Participating Judge(s): Ishee and Carlton, 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: 10-17-2008 Appealed from: Harrison County Circuit Court Judge: JERRY O. TERRY, SR. Disposition: AFFIRMED THE AGENCY’S DECISION Case Number: A2401-06-413 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | WASTEWATER PLANT SERVICE CO., INC. |
GEORGE W. HEALY IV |
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| Appellee: | HARRISON COUNTY UTILITY AUTHORITY | LEONARD ADAM BLACKWELL II, JASON RUSSELL SAVARESE | ||
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: | Wastewater facilities - Request for proposals - Certificate of responsibility - Section 31-3-1(a) - Violation of sections 31-7-13(c)(ii) and (d)(i) - Section 31-7-13(r) |
| Summary of the Facts: | Wastewater Plant Service Co., Inc. brought this action against Harrison County Utility Authority after HCUA chose another company’s proposal for the operation and management of HCUA’s wastewater facilities. On appeal by bill of exceptions, the circuit court affirmed HCUA’s decision. WPSCO appeals. |
| Summary of Opinion Analysis: | Issue 1: Request for proposals WPSCO argues that UP did not comply with the request for proposals because it did not have a representative present at the mandatory pre-proposal meeting, and the contract between HCUA and SA/UP is void because UP did not have a certificate of responsibility. Because HCUA, in the RFP, reserved the right to waive any informalities deemed to be in the best interest of the authority, HCUA had the power to waive UP’s nonattendance at the pre-proposal meeting. WPSCO cites no authority for the proposition that the failure to attend the pre-proposal meeting would deny a party the right to enter a bid or proposal. With regard to the certificate of responsibility, the definitions provided in section 31-3-1(a) clearly indicate that the certificate of responsibility statutes under Title 31, Chapter 3 govern what would most typically be referred to as construction projects. There is no authority to support the conclusion that UP was required to have a certificate of responsibility to operate and manage a wastewater facility and interceptor system. It was evident from the RFP and the proposals submitted that the operation and management of the facility was the major component of the project, not its maintenance. Although the RFP does ask for repairs to be made, the repairs contemplated were nothing more than routine and minor repairs. The contract at issue was not for building or constructing, which would require a certificate of responsibility. Issue 2: Violation of sections 31-7-13(c)(ii) and (d)(i) WPSCO argues that HCUA violated sections 31-7-13(c) and (d) by not re-opening the bidding so that other bidders could modify their bids and by not stating the reasons for not choosing the lowest bid. However, neither subsection (c)(ii) nor (d) applies to this contract. Subsections (c)(ii) and (d) apply to bidding requirements. This is a contract for a waste-water-treatment system and is specifically exempted from bidding requirements pursuant section 31-7-13(m)(xxii). In lieu of bidding requirements, an agency which contracts for waste collection or disposal must publish a request for proposals. WPSCO argues that HCUA acted arbitrarily and capriciously when the HCUA engineer evaluated the three “extras” as having a market value of between $28,000 and $35,000 and by adjusting WPSCO’s bid upward by $30,000. The executive director of HCUA and an experienced engineer had the authority to compare the proposals and estimate the market price of the differences in the proposals. Accordingly, his estimation of the price differences was not arbitrary and capricious. WPSCO argues that there was no justification in awarding SA/UP the contract because WPSCO’s proposal was the lowest price. However, the RFP stated that HCUA reserved the right to reject any proposal and “to award the contract to the offeror whose proposal is determined to be most advantageous to HCUA, taking into account price and other evaluation factors.” Accordingly, WPSCO and SA/UP were on notice that price would not be the deciding factor. Pursuant to section 31-7-13(r), the price was just one factor for the Board to consider. |
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