COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
The opinion of the court was delivered by: Smith, Justice, For The Court:
DATE OF JUDGMENT: 08/16/95
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
NATURE OF THE CASE: CIVIL - OTHER
MOTION FOR REHEARING FILED: 11/26/97
¶1. Motion for rehearing denied. The original opinions are withdrawn and these opinions are substituted therefor.
¶2. Sunland Publishing Company, engaged in business as the Northside Sun, (hereinafter "Sun"), appeals from an adverse ruling of the Hinds County Circuit Court, which affirmed the finding of the Jackson City Council, (hereinafter "Council"). The Council awarded a contract for the publishing of the City of Jackson's legal advertisements to the Jackson Advocate, (hereinafter "Advocate"), even though the bid submitted by the Sun was significantly lower than that submitted by the Advocate.
¶3. The Sun appealed, and the circuit Judge reversed and remanded the case to the Council for additional findings of fact. The Council made no additional findings of fact, but rather, deleted its prior finding that the Sun was qualified according to the appropriate statute as a newspaper with general circulation. The Council also removed the issue from its agenda. The Sun again appealed to the circuit court. The circuit Judge held that a sufficient basis now appeared in the record for the Council to find as it did and ruled in favor of the City of Jackson. We find that the failure of the Council to follow the court's order by making no additional findings of fact sufficient to establish that the Sun was not a newspaper of general circulation was arbitrary and capricious. Having so determined, we now reverse and remand.
¶4. On October 25, 1994, the City of Jackson notified the Northside Sun, the Jackson Advocate, and the Clarion-Ledger that it was accepting bids for the publication of the City's proceedings, ordinances, resolutions, and other notices to be published according to Miss. Code Ann. § 21-39-3 (1972), which requires that such contracts be awarded to the lowest bidder. Each paper submitted bids to the City with supporting affidavits to evidence their qualifications and compliance with the requirements set forth in Miss.Code Ann. § 13-3-31 (Supp. 1996). Based upon the evaluation of the cost for a single one-hundred- word advertisement published three times and a single proof of publication, the Sun bid $8 total for three publications, the Advocate bid $15, and the Clarion-Ledger bid $19. The Jackson City Council, at its November 22, 1994 meeting, reviewed all the bids as required by statute. After extensive Discussion, the Council amended the order and awarded the contract to the Jackson Advocate as the lowest bidder meeting all requirements and qualifications.
¶5. The reasoning adhered to by some members of the Council was that: (1) The Sun bid was so low that it was apparently attempting to put the Advocate out of business; (2) The Sun, unlike the Advocate and the Clarion-Ledger, did not take the relevant but statutorily unnecessary step of breaking down its subscription base by zip code, as it had done when bidding in prior years; (3) One Council member was not convinced that the Sun was a paper of "general circulation" as required by statute; and (4) Three of the deciding Council members had never seen the Sun in their neighborhoods.
¶6. The order submitted by the Council stated that all three bidders were qualified, but awarded the publication contract to the Advocate. The Sun appealed the Council's order awarding the contract to the Advocate, and the circuit court found that the Council had awarded the bid based upon an improper order. The circuit Judge stated that because the law requires that the contract be awarded to the lowest qualified bidder and the Council's order awarding the contract states that the Sun is indeed qualified, then the order awarding the contract to the Advocate was arbitrary. Nevertheless, the circuit Judge went on to find that the transcript from the Council meeting indicates that the Council did not determine the Sun to be qualified as stated in the order. The Judge noted a Discussion of whether the Sun's circulation met the criteria of general circulation within the city or was directed primarily to Northeast Jackson and South Madison County. The Judge then noted that the amendment naming the Advocate as the contract recipient was made to the order only after this Discussion. Further, the Judge observed that the Council continued to discuss whether the Sun met general circulation requirements even after the amendment to the order had been approved by the Council. The lower court stated:
This appears to have the cart before the horse. The Council discussed and considered matters which would have supported the finding that the Northside Sun did not meet the requirements of general circulation. The record does reflect that a majority of the Council did not consider the Northside Sun to be qualified, but no vote was taken.
The lower court held that it could not arbitrarily determine that the Council found as a fact that the Sun did not meet the statutory requirements of general circulation. Therefore, the lower court remanded the matter to the Council with ...