Hill Brothers Constr. & Eng'g Co., Inc. v. Miss. Transp. Comm'n
| Docket Number: | 2003-CA-02596-SCT Linked Case(s): 2003-CA-02596-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-18-2005 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Public contract - Competitive bidding - Section 102.07 of the Mississippi Standard Specifications for Road and Bridge Construction - Waiver of irregularity 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. Procedural History: Summary Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 09-12-2003 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: On cross-motions for summary judgment, Circuit Judge Yerger granted MTC’s motion except as to Hill Brothers’ standing to sue and dismissed Hill Brothers’ complaint with prejudice. Judge Yerger ruled that, as a matter of law, the MTC had acted within its discretion in awarding the subject contract to Iafrate. Case Number: 251-01-413CIV |
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| Note: | The motion for rehearing filed by appellant is denied. This Court's previous opinion is withdrawn and this opinion is substituted therefor. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Hill Brothers Construction & Engineering Company, Inc. |
WILLIAM R. PURDY, JULIE SNEED MULLER |
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| Appellee: | Mississippi Transportation Commission | TIM HANCOCK |
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| Topic: | Public contract - Competitive bidding - Section 102.07 of the Mississippi Standard Specifications for Road and Bridge Construction - Waiver of irregularity |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. 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 judge granted MTC’s motion except as to Hill Brothers’ standing to sue and dismissed Hill Brothers’ complaint with prejudice. Hill Brothers appeals. |
| Summary of Opinion Analysis: | Here, the following facts are undisputed: the manner in which the advertisements were made, the fact that Iafrate timely submitted a sealed bid, that Iafrate submitted the lowest of the three bids, that Iafrate’s bid included the required and appropriate bond, that Iafrate’s bid bond guaranteed that Iafrate would enter into a contract with the MTC for the amount of the bid, that Iafrate submitted the appropriate performance bond for the price of the contract, that Iafrate performed the work, and that Iafrate’s bid included all work and materials. 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 included, albeit, not signed. Hill Brothers argues that Iafrate’s bid proposal did not meet the requirements of Section 102.07(e) because it did not contain a signed second unnumbered page of the “SECTION 905 PROPOSAL” with Addendum. The regulations of the MTC, which were part of the bid documents, do not mandate the rejection of any bid submitted in violation of Section 102.07. The language of Section 102.07 clearly states that the violation of any such regulation “may” be considered by the MTC as a reason for rejecting a bid. Therefore, since the regulation uses the permissive language “may” as opposed to the mandatory language “shall,” whether to reject the bid is clearly within the discretion of the MTC. Hill Brothers’ argument that the MDOT considered Iafrate’s bid deficiency as material as stated in deposition testimony of various MDOT employees fails because the only entity that can make the decision is the MTC, not MDOT employees and because material is a legal term which is determined by the courts of this State. Hill Brothers argues that Iafrate’s bid was irregular. The language of Section 102.07(e) is conjunctive. 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’ contention. Hill Brothers argues that an unsigned bid may not be accepted. While an unsigned bid may not be accepted, here there was clearly a signed bid by Iafrate at the time the bids were opened. 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. Therefore, the MTC retained the authority to waive the irregularity and award the bid to Iafrate. Hill Brothers argues that the amount of Iafrate’s bid is totally irrelevant, and that the MTC and the trial court erred in considering the amount of money saved by not rejecting Iafrate’s bid. Waiver of an irregularity or technicality is allowed, particularly where to do otherwise, would defeat the very purpose of competitive bidding. Here, 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 argues that the MTC abused its discretion to waive an irregularity by their prior conduct of rejecting all known irregular bids for the past twenty years. MTC retained the discretion to waive the irregularity, regardless of whether it exercised this discretion in the past. It is of no consequence that the MTC rejected all known irregular bids because Hill Brothers has failed to prove that MTC’s decision was arbitrary or capricious, was not supported by substantial evidence, was beyond the power of the MTC to make, or violated some statutory or constitutional right of Hill Brothers. |
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