Expert Masonry, Inc. v. Boone County, Ky.

Citation440 F.3d 336
Decision Date08 March 2006
Docket NumberNo. 05-5062.,05-5062.
PartiesEXPERT MASONRY, INC., Plaintiff-Appellant, v. BOONE COUNTY, KENTUCKY, Fiscal Court; Don Salyers Masonry, Inc.; Don Salyers; John Doe #2, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Charles F. Hollis, III, Benjamin, Yocum & Heather, Cincinnati, Ohio, for Appellant. Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, Covington, Kentucky, Michael T. Sutton, Sutton, Hicks, Lucas, Grayson & Braden, Edgewood, Kentucky, for Appellees. ON BRIEF: Charles F. Hollis, III, Thomas R. Yocum, Benjamin, Yocum & Heather, Cincinnati, Ohio, for Appellant. Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, Covington, Kentucky, Michael T. Sutton, Sutton, Hicks, Lucas, Grayson & Braden, Edgewood, Kentucky, for Appellees.

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and KATZ, District Judge.*

BOGGS, Chief Judge.

Plaintiff-appellant is a company that bid on two public construction projects, failed to win either of them, and now seeks to mend its misfortune by asking the federal courts to reverse the buyer's judgment of the competing construction bids' relative merits. Specifically, the appellant claims that the government purchasing entity and the winning private bidder unlawfully conspired in violation of Section 1 of the Sherman Act, and also violated 42 U.S.C. § 1983 by unlawfully depriving the disappointed bidder of a vested property interest.

The district court granted summary judgment to the defendants with respect to all claims. We affirm.

I

In 2001 and 2002, the Boone County, Kentucky, Fiscal Court ("BCFC") opened two construction bids in order to build a new courthouse and a new jail.1 Expert Masonry, Inc. ("EMI"), an Ohio company, brought this suit challenging the process by which BCFC awarded the masonry contract for those projects to defendant Don Salyers and his wholly-owned company, Don Salyers Masonry, Inc. ("DSM"), a company based in Boone County, Kentucky. EMI initially challenged the jail project only, but later amended its complaint to add the earlier courthouse project to the lawsuit.

In February 2001, BCFC advertised for bids for the courthouse project. DSM submitted the lowest bid for the masonry work, in the approximate amount of $1.2 million, and EMI submitted the second-lowest bid, in the approximate amount of $1.38 million. BCFC awarded the contract to DSM. Although BCFC required successful bidders to submit performance bonds in the full bid amount, DSM submitted a bond only in the contract amount (that is to say, the bond excluded the materials costs). BCFC accepted the bonds, but no one appears to have noticed the discrepancy in the amount of the bond at the time. EMI did not challenge this bid until it amended its complaint in August 2003, although the courthouse project had already been completed.

In June 2002, BCFC published a request for proposals to build a new jail and sheriff's office. The jail project bid included a set of standard instructions (printed in 1997) stating that each bid had to be accompanied by a five-percent "bid bond," that successful bidders were required to furnish a one-hundred-percent "Performance and Labor and Material Payment" bond, and that any bid not accompanied by the required bid security or that was otherwise incomplete or irregular was "subject to rejection." These instructions also noted that BCFC reserved the right "to reject any or all Bids," and that BCFC "shall have the right to waive informalities and irregularities in a Bid received and to accept the Bid which, in [BCFC's] judgment, is in [BCFC's] own best interests." However, it was the "intent of [BCFC] to award [each contract] to the lowest qualified [bidder] provided the [bid has] been submitted in accordance with the requirements of the Bidding Documents and does not exceed the funds available." The specifications for the jail project also noted that the bond "shall be in the combined amount of the materials designated in its bid to be acquired by Purchase Order by the Owner and all remaining items of cost...."

On July 25, 2002, DSM submitted a bid for the jail project without a bid bond. When the bids were opened, DSM had submitted the lowest bid for the masonry work, and EMI had submitted the second lowest bid, having bid approximately $292,000 more than DSM. EMI responded by requesting permission to examine the bid packages, and though Boone County Administrator James Parsons initially refused, saying "they are not public documents for everyone to finger through," another county official later relented. That was when EMI discovered that DSM had failed to submit a bid bond. DSM was the only bidder that failed to post a bond with its jail-project bid.

BCFC responded to EMI's subsequent complaint by rejecting all bids on the grounds that the bid had not been properly advertised, and BCFC then modified the bid announcement by allowing bidders to post bid security in the form of either a bid bond or certified check. When the jail-project bids were resubmitted on August 22, 2002, DSM submitted a cashier's check in lieu of a bid bond. DSM was again the lowest bidder and EMI was again second, though EMI had narrowed the gap to approximately $145,000. On September 3, and considering the August 30 recommendation of David Codell, who was charged with the construction of the jail project, BCFC passed a unanimous resolution awarding the jail project to DSM, subject to DSM's providing payment and performance security in the bid amount of approximately $3.2 million.

Codell demanded from DSM all documentation necessary to prepare the jail project contract on September 11, and, five days later, he demanded DSM's executed bonds. He did not receive them. On September 24, Codell and BCFC Contracts Administrator Robin Curry instructed DSM to commence work on the jail project on September 30. However, DSM still failed to provide the requested security. In an unusual turn of events, Curry personally visited DSM's office on October 7 to discuss the company's failure to provide security. On October 17, Codell recommended to Curry that DSM's bid be rejected "because they have not been able to provide any type of Performance and Payment Bond." On that same day, Curry drafted a memorandum to Boone County Administrator James Parsons recommending that DSM's bid be denied because DSM's "failure to provide security places Boone County at risk and has caused a substantial increase in the masonry costs." He noted that "[w]hile we would prefer to have a Boone County operated company perform this work, [DSM] has failed to meet the bid specification." BCFC apparently enjoyed the right to declare that DSM had forfeited its bid security (in the amount of approximately $160,000) and apply that amount toward the jail project, but BCFC chose not to do so. Codell and Curry both recommended at this time that BCFC award the jail project to EMI.

For the October 22 BCFC meeting, a draft resolution was prepared to adopt Curry's recommendation to award the jail project to EMI. Curry himself called EMI President Paul Brown on October 20 to inform him that he had requested that BCFC reject DSM's bid for lack of adequate security. Codell also called EMI's Vice President on October 21 to inform him that EMI would be awarded the jail project. On that same day, however, County Administrator Parsons and Boone County Judge-Executive Gary Moore called Salyers. Salyers informed them that DSM had been unable to obtain the requested security, and Moore allowed Salyers until November 5 to obtain the security. Judge-Executive Moore then removed the proposed resolution awarding the jail project to EMI from the BCFC's agenda, contingent on DSM's providing the requisite security. On November 5, DSM obtained payment and performance bonds for the jail project that were said to be approximately $2.3 million, an amount that excluded the cost of materials. The parties continue to dispute whether DSM's jail-project bonds ever met the county's specifications.

Construction manager Codell then informed Salyers that DSM's bond was insufficient as the bond was in the contract amount (excluding materials costs). Salyers responded by noting that BCFC had accepted DSM's bonds in the contract amount for the courthouse project, and, based on this past practice, Salyers asserted that his bonds were satisfactory. Codell in turn called County Administrator Parsons to determine whether the County would deem this state of affairs acceptable, and Parsons concluded that the County was adequately secured. DSM was then awarded the masonry work for the jail project.

On December 6, 2002, EMI filed suit against BCFC, Don Salyers, and DSM, alleging antitrust and other federal and state violations in the jail-project bidding process. EMI specifically complained that BCFC illegally awarded the jail project to DSM in violation of the county's limited discretion under state procurement law, that it conspired to make the award in violation of Section 1 of the Sherman Act, and that the award to DSM abridged EMI's Fourteenth Amendment Due Process property interest in the jail project bid, in violation of 42 U.S.C. § 1983. EMI also alleged state claims of fraud, collusion, tortious interference with business relations, and promissory estoppel. EMI amended its complaint in August 2003 to add the circumstances of the courthouse project bidding process to its antitrust suit, specifically alleging that BCFC had accepted an inadequate performance bond from DSM in awarding the courthouse project. On May 18, 2004, following significant discovery, the defendants filed a motion for summary judgment. On November 29, 2004, the district court granted defendants' motion and dismissed all of EMI's claims. EMI raises only the antitrust and § 1983 claims on appeal.

II

This court reviews an order granting summary judgment de novo. Johnson...

To continue reading

Request your trial
89 cases
  • Animal Science Products v. China Nat. Metals
    • United States
    • U.S. District Court — District of New Jersey
    • December 30, 2008
    ... 596 F.Supp.2d 842 ... ANIMAL SCIENCE PRODUCTS, INC., et al., Plaintiffs, ... CHINA NATIONAL METALS & MINERALS ... 1627, 161 L.Ed.2d 577 (2005); Phillips v. County" of Allegheny, 515 F.3d 224, 231-33 (3d Cir.2008) ...  \xC2" ... See Expert Masonry, ... Page 859 ... Inc. v. Boone County, ... ...
  • Churchill Downs v. Thoroughbred Horsemen's Group
    • United States
    • U.S. District Court — Western District of Kentucky
    • March 20, 2009
    ...procompetitive benefit,' that it is conclusively presumed to be unreasonable." Bassett, 528 F.3d at 426; Expert Masonry, Inc. v. Boone County, KY., 440 F.3d 336, 342 (6th Cir.2006) (quoting Bailey's, Inc. v. Windsor America, Inc., 948 F.2d 1018, 1027 (6th Facts that make Plaintiffs' theory ......
  • Sweetwater Valley Farm, Inc. v. Dean Foods Co. (In re Southeastern Milk Antitrust Litig.), Master File No. 2:08–MD–1000.
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • July 14, 2011
    ...(6th Cir.2000)). This statement is also consistent with other decisions of the Sixth Circuit. For instance, in Expert Masonry, Inc. v. Boone County, Kentucky, 440 F.3d 336 (2006), the Sixth Circuit said: “In the first instance, courts must distinguish between some types of unlawful anticomp......
  • Nolen v. Fedex Techconnect, Inc.
    • United States
    • U.S. District Court — Western District of Tennessee
    • September 4, 2013
    ...significant probative evidence in support of its complaint to defeat the motion for summary judgment.” Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 341 (6th Cir.2006). Therefore, as there has been no direct evidence presented “which, if believed, requires the conclusion that unl......
  • Request a trial to view additional results
1 firm's commentaries
  • Clearance: Proskauer's Quarterly Antitrust Update - Fall 2012
    • United States
    • Mondaq United States
    • October 16, 2012
    ...was made up of the allegedly harmed RNs. 5Cason-Merenda v. Detroit Medical Center, supra. 6Expert Masonry, Inc. v. Boone County, Ky., 440 F. 3d 336, 342 (6th Cir. 2005) (citations 7 Cason-Merenda at *17-18. 8 Id. at *19. 9 Id. at *17, citingMatsushita Electric Indus. Co. v. Zenith Radio Cor......
10 books & journal articles
  • Chapter VII. Pleadings and Procedural Issues
    • United States
    • ABA Archive Editions Library State Action Practice Manual. Second Edition
    • January 1, 2010
    ...the nature of an affirmative defense to conduct which is otherwise assumed to be unlawful.”); Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 345-46 (6th Cir. 2006); Elec. Inspectors, Inc. v. Village of E. Hills, 320 F.3d 110, 117 (2d Cir. 2002). 17. See, e.g. , Yeager’s Fuel , 22 ......
  • Basic Antitrust Concepts and Principles
    • United States
    • ABA Antitrust Library Antitrust Health Care Handbook, Fourth Edition
    • February 1, 2010
    ...Atl. Richfield Co. v. USA Petroleum, Inc., 495 U.S. 328, 341-45 (1990); see also Expert Masonry, Inc. v. Boone County, Ky. Fiscal Court, 440 F.3d 336, 346 (6th Cir. 2006) (“Critically, the Supreme court has that ‘it is inimical to the antitrust laws to award damages for losses stemming from......
  • Pleadings and Procedural Issues
    • United States
    • ABA Antitrust Library State Action Practice Manual. Third Edition
    • December 9, 2017
    ...in the nature of an affirmative defense to conduct which is otherwise assumed to be unlawful.”); Expert Masonry, Inc. v. Boone Cnty., Ky., 440 F.3d 336, 345-46 (6th Cir. 2006); Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2002). 17. See, e.g. , FTC v. Phoebe Putne......
  • Table of Cases
    • United States
    • ABA Archive Editions Library State Action Practice Manual. Second Edition
    • January 1, 2010
    ...Jan. 31, 2008), 95, 96 Euster v. Eagle Downs Racing Ass’n, 677 F.2d 992 (3d Cir. 1982), 171 Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336 (6th Cir. 2006), 132 F Falls Chase Special Taxing Dist. v. City of Tallahassee, 788 F.2d 711 (11th Cir. 1986), 72 First Am. Title Co. v. Devaug......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT