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COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/10/2012. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL. TRIAL COURT AFFIRMED LAMAR COUNTY SCHOOL BOARD'S AWARD OF CONTRACT TO HANCO CORPORATION.
FOR APPELLANT: CHRISTOPHER SOLOP.
FOR APPELLEE: DAVID M. OTT, JOSEPH RANDLE TULLOS, RICHARD D. NORTON.
BEFORE LEE, C.J., BARNES AND ISHEE, JJ. LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - OTHER
¶1. On July 8, 2011, the Lamar County School Board (Board) issued a solicitation for bids for the construction of a new elementary school. Rod Cooke Construction Company (Cooke), a nonresident contractor from Alabama, submitted the lowest bid of $9,232,000. The second lowest bid was submitted by Hanco Corporation (Hanco), a Mississippi resident contractor. Hanco's bid was $9,321,000 ($89,000 more than Cooke's bid).
¶2. At the September 28, 2011 Board meeting, the proposed bids for construction of the elementary school were discussed, and the three lowest bids were considered. The minutes from the meeting noted:
Board Counsel provided a narrative summary of the job performance of the two companies, Rod Cooke Construction and Hanco Corporation. Counsel reported that the information provided as a summary was obtained from various sources including contact with contractors, architects, subcontractors[,] and property owners. There were positive comments for both bidders, and the summary of negative comments [is] as follows:
Rod Cooke Construction:
1. A lack of coordination of some projects between the general and subcontractors resulted in delay in completion.
2. Occasional delay in paying subcontractors timely has created negative attitudes and problems with subcontractors.
3. Dissatisfaction with the workmanship from the perspective of a few owners.
4. Delay in completing time sensitive projects.
1. Delay in completing a project - not a time sensitive project.
Upon hearing the information from [Board Counsel], Dr. Burnett recommended that the Board proceed with awarding the bid and that they accept the Hanco Corporation bid.
Buddy Morris then made a motion to award the bid to Hanco [Corporation] based on the preference to resident contractors and based on Hanco [Corporation] being the " lowest and best bid" as well as " substantially equal" in cost to Rod Cooke Construction.
Thus, the Board awarded the job to the second lowest bidder, Hanco.
¶3. On September 29, 2011, Cooke filed a protest; however, the Board did not reconsider its decision to reject Cooke's bid. Board counsel sent a letter to Cooke on October 6, 2011, outlining the Board's reasons for awarding the bid to Hanco. Cooke filed a notice of appeal with the Lamar County Circuit Court on October 10, 2011; Cooke's bill of exceptions, signed by the Board president, was filed on October
11, 2011. A hearing was held on February 6, 2012, and the circuit court affirmed the Board's decision to award the job to Hanco.
¶4. On appeal, we find that the Board's award of the contract to Hanco was not arbitrary or capricious, and we uphold the circuit court's judgment.
STANDARD OF REVIEW
¶5. Our review of a municipal board's actions is limited. Precision Commc'ns, Inc. v. Hinds Cnty, 74 So.3d 366, 369 (¶ 9) (Miss. Ct. App. 2011) (citing Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 10) (Miss. 2007)).
[W]e will not set aside the action of the governing body of a municipality unless such action is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis. An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion or more than a mere scintilla of evidence.
Id. (internal citations and quotation marks omitted). Questions of law and issues of statutory interpretation, however, are reviewed de novo. Id.
I. Whether the " Instructions to Bidders" required the Board to award the contract to Cooke as the low bidder and whether the Board's investigation into Cooke's past performance was arbitrary, capricious, and self-serving.
¶6. Cooke contends that language in the " Instructions to Bidders" required the Board to accept the lowest bid offer and that the bid documents should have reflected that past performance would be considered in awarding the bid. The " Instructions for Bidders" stated:
Award of Contract: Contract will be awarded on the basis of the low base bid or low combination of base bid and those alternates if any which produce a total within available funds. The Owner reserves the right to waive irregularities and to reject any and all bids.
However, the instructions also noted: " Disqualification of Bidder: 'The Owner reserves the right to award to other than the low bidder when, in the Owner's judgment, it is in his best interest to do so.'"
¶7. Mississippi Code Annotated section 31-7-13(d)(i) (Supp. 2012), which governs the bidding process for ...