DATE OF JUDGMENT: 08/09/96 TRIAL JUDGE: HON. GLENN BARLOW COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
DISPOSITION AFFIRMED - 12/8/97 MOTION FOR REHEARING FILED: MANDATE ISSUED:
Before Sullivan, P.j., Smith And Mills, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court:
¶1.Originally, this opinion was designated not for publication. A Motion for Reconsideration of Non-Publication was filed by the Appellee and the response was filed by the Appellant. Both parties asked that the opinion in this appeal be published. Finding thtat the motion to be well taken, we withdraew the unpbuublished opinion and substitute this one therefore.
¶2.Clancy's Lawn Care and Landscaping, Inc. (Clancy's) bid on a contract let by the City of Ocean Springs for maintenance work on land adjacent to U.S. Highway 90. When Clancy's did not get the job it sued, stating that under Miss. Code Ann. § 31-3-15 no such contract could be awarded to a contractor who did not have a current certificate of responsibility, as the company awarded the bid did not. The Mississippi Board of Contractors (Board) entered an order stating that (1) the City of Ocean Springs needed to make a determination under Rule 5 which classification of work covers at least 50% of the total cost of project; (2) if at least 50% of the project constitutes grounds maintenance, then a certificate of responsibility was needed; and (3) if at least 50% of the total cost of the project constitutes mowing and/or litter removal, then a certificate of responsibility was not needed.
¶3.Clancy's appealed the order of the Board to the Jackson County Chancery Court, and the court affirmed the order of the Board. Clancy's now appeals to this Court and alleges (1) that the Board did not have the authority to determine that mowing and/or litter removal did not require the bidder to have a certificate of responsibility and (2) that the Appellee's Rule 5 allowing for a determination of whether the majority of the job in question was "contractor" work was in conflict with the statutes. The Board argues (1) that mowing and litter removal did not meet the statutory definition of "contractor" work under Miss. Code Ann. § 31-3-1, so that the requirement of a certificate of responsibility was not necessary and (2) that Rule 5 was a proper expression of its rule making authority.
¶4. On January 18, 1996, the City of Ocean Springs, Mississippi (City) issued a Request for Provisions (RFP) for certain work to be done along U.S. Highway 90 within the City. The RFP set forth specifications and provided that the work was for "US Highway 90 Landscaping Maintenance to Include Grass Maintenance". The scope of the work described by the RFP was to provide pruning, mulching, weeding, fertilizing, insecticide and fungicide treatment, plant replacement, mowing, trimming and litter removal.
¶5.The City published a legal notice of an invitation to bid on proposals for this work and accompanying the legal notice was the same language delineating the scope of work as set forth in the RFP. The City received at least two responses to the RFP, including one proposal from Clancy's in the approximate amount of $102,000 and one proposal from Your Personal Gardener (YPG) in the approximate amount of $57,000. At the time the bids were submitted, Clancy's had a valid certificate of responsibility issued by the Board with the classification of "Grounds Maintenance," and YPG did not have a certificate of responsibility issued by the Board.
¶6.The contract was initially awarded to YPG by the City, based on the Board's previous opinion on January 11, 1995, that no certificate of responsibility was required to do mowing or litter removal. On March 28, 1996, Clancy's filed an injunction lawsuit against the City and YPG. However, the injunction lawsuit was dismissed after all parties agreed to attend the quarterly meeting of the Board to seek a clarification of the Board's previous ruling on January 10, 1995 concluding that mowing and litter removal did not require a certificate of responsibility. Clancy's contended that under Miss. Code Ann. § 31-3-15 no such contract could be awarded to a contractor who did not have a current certificate of responsibility. After hearing evidence from both sides, the Board concluded (1) that work under the classification of Grounds Maintenance meets the definition of "contractor" in Miss. Code Ann. § 31-3-1 and therefore requires a certificate of responsibility issued by the Board and (2) that no certificate of responsibility is required to conduct mowing or litter removal, as neither of these activities meets the definition of "contractor".
¶7.Based on these Conclusions, the Board entered an order that under Rule 5 of the Rules and Regulations of the Board (1) the awarding agency must make a determination of which classification of work covers at least 50% of the total cost of the project; (2) if at least 50% of the total cost of the project constitutes ground maintenance, then a certificate of responsibility is needed; and (3) if at least 50% of the total cost of the project constitutes mowing and/or litter removal, then a certificate of responsibility is not needed.
¶8.Clancy's appealed the order of the Board to the Jackson County Chancery Court. After review of the record, the chancery court concluded that "the action taken by the Board was supported by substantial evidence, was not arbitrary of (sic) capricious, was within in (sic) the power of the Board to make, and did not violate any statutory or constitutional right of [Clancy's]." The chancery court further found that the Board was bound to follow Rule 5 of its Rules and Regulations and that it was within their authority to conclude that mowing and/or litter removal did not require a certificate of responsibility. Aggrieved by the chancery court's decision, Clancy's appeals to this Court and cites the following issue:
WHETHER THE CHANCERY COURT ERRED IN CONCLUDING THAT THE MISSISSIPPI STATE BOARD OF CONTRACTORS HAD THE AUTHORITY TO DETERMINE THAT MOWING AND/OR LITTER REMOVAL DID ...