Hill Brothers Constr.n & Eng'g Co., Inc. v. Miss. Transp. Comm'n


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Docket Number: 2003-CA-02596-SCT
Linked Case(s): 2003-CA-02596-SCT

Supreme Court: Opinion Date: 03-03-2005
Holding: Affirmed

Additional Case Information: Topic: Public contract - Competitive bidding - Section 65-1-85 - Section 102.07 of the Mississippi Standard Specifications for Road and Bridge Construction - Damages
Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley and Graves, JJ.
Non Participating Judge(s): Diaz, J.
Dissenting Author : Waller, P.J.
Dissent Joined By : Carlson and Dickinson, JJ.

Trial Court: Date of Trial Judgment: 09-12-2003
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Case Number: 251-01-413CIV

  Party Name: Attorney Name:  
Appellant: Hill Brothers Construction & Engineering Company, Inc.








 

Appellee: Mississippi Transportation Commission  

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Topic: Public contract - Competitive bidding - Section 65-1-85 - Section 102.07 of the Mississippi Standard Specifications for Road and Bridge Construction - Damages

Summary of the Facts: Hill Brothers Construction & Engineering Company, Inc. filed suit against the Mississippi Transportation Commission, asserting that MTC’s award of a construction contract to Angelo Iafrate Construction, LLC was contrary to Mississippi law and wrongfully dispossessed Hill Brothers of the benefits of a contract which should have been awarded to it. On cross-motions for summary judgment, the court granted MTC’s motion and denied Hill Brothers’ motion except as to standing. Hill Brothers appeals.

Summary of Opinion Analysis: The construction of highways is to be through the competitive bidding process as set forth in section 65-1-85, which provides that all construction contracts shall be made by the executive director, subject to the approval of the commission, only upon competitive bids after due advertisement. Requests for proposals must be advertised once a week for two weeks in the appropriate newspaper, certain bond requirements are to be met, and the contract is to be awarded to the lowest responsible bidder. Hill Brothers argues that the MTC violated its own rules by reading Iafrate’s bid proposal and waived an alleged material irregularity by accepting the Iafrate bid even though the second unnumbered page of the “SECTION 905 PROPOSAL” with Addendum was not signed. Section 102.07 of the Mississippi Standard Specifications for Road and Bridge Construction provides that proposals will be considered irregular and may be rejected if Section 905 of the proposal does not contain acknowledgment of receipt and addition to the proposal and contract documents of all addenda issued prior to opening of bids. Since the regulation uses the permissive language “may” as opposed to the mandatory language “shall,” whether to reject the bid based on violation of the regulation is clearly within the discretionary power of the MTC. Hill Brothers argues that Iafrate’s bid was irregular. For there to be an irregularity in a bid, there must have been a failure to contain an acknowledgment of receipt of the Addendum, and there must be a failure to include contract documents of addenda issued prior to the opening of bids. The Section 905 Proposal, with the exception of unnumbered page two, and all other documents clearly contradict and disprove Hill Brothers’s contention. The detailed bid and 5% bond given by Iafrate to the MTC also dispels this argument. Iafrate’s bid proposal included the “SECTION 905 PROPOSAL” with Addendum. Therefore, Iafrate’s bid indicates that Iafrate received the Addendum, that its bid contained all the revised bid sheets sent out with the Addendum, and that it accepted responsibility to be bound by the proposal with the addendum. Because the irregularity did not alter the bidding process, did not provide any bidder with an advantage or benefit over any other bidder, did not prejudice the rights of any other bidder or the public, did not alter the price, quality or quantity of its bid, and the waiver of the irregularity did not provide an opportunity for fraud or favoritism or affect the integrity of the competitive bidding process, the MTC retained the authority to waive the irregularity and award the bid to Iafrate. The fact that the MTC exercised its discretion for the first time in twenty years is not tantamount to an arbitrary or capricious act. Hill Brothers also argues that the MTC and the trial court erred in considering the amount of money saved by not rejecting Iafrate’s bid. If the MTC had rejected Iafrate’s bid and awarded the project to Hill Brothers, it would have done so at an increased cost of $7,941,029.55 to the taxpayers of this State for exactly the same work. Hill Brothers, in its complaint, demanded a sum of not less than $4,500,000, which Hill Brothers alleges it would have earned had it been awarded the project. Hill Brothers is not entitled to the damages sought. Hill Brothers’ bid can only be classified as an offer, which the MTC has the discretion to accept or reject. Consequently, there was never a contract between Hill Brothers and the MTC. Hill Brothers’ only remedy was to seek to enjoin the MTC from entering into the contract with Iafrate which it failed to do.


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