GEORGE & BENJAMIN CONTRACTORS v. VI DEPT. OF PROP., D.C.Civ.App. No. 1994-3.
| Decision Date | 10 April 1996 |
| Docket Number | No. D.C.Civ.App. No. 1994-3.,D.C.Civ.App. No. 1994-3. |
| Citation | 921 F. Supp. 304 |
| Court | U.S. District Court — Virgin Islands |
| Parties | GEORGE & BENJAMIN GENERAL CONTRACTORS, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS DEPT. OF PROPERTY AND PROCUREMENT, and Unlimited Construction, Inc., Appellees. |
Denise George-Counts, St. Thomas, U.S. Virgin Islands, for Appellant.
Pamela R. Tepper, Assistant Attorney General, V.I. Department of Justice St. Thomas, U.S. Virgin Islands, for Appellee Government of the Virgin Islands.
Victor Frazer, St. Thomas, U.S. Virgin Islands, for Named Appellee Unlimited Construction, Inc.
Before: MOORE, Chief Judge, District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands; and ALPHONSO G. ANDREWS, Judge of the Territorial Court of the Virgin Islands, St. Croix Division, Sitting by Designation.
George & Benjamin General Contractors "George & Benjamin" or "appellant" appeals the Territorial Court's December 1, 1993 Judgment denying injunctive relief to prohibit the Department of Property and Procurement of the Government of the Virgin Islands sometime "Procurement" or "Government" or "appellee" from awarding a contract to Unlimited Construction, Inc. "Unlimited"1 for the completion of Phase II of the Knud Hansen Hospital Complex. Appellant contends that the trial judge should have granted its request for an injunction because the actions of the Government were illegal and thus properly subject to judicial review and modification. Appellee argues that the court's decision below was proper because of the wide discretion afforded to Government agencies in contracting decisions, and that, in any case, the question is now moot because the construction project is virtually complete. For the reasons that follow, we find that the questions before the Court are not moot, and we affirm the trial court's decision.
On or about August 9, 1993, Procurement issued an Invitation for Bids "IFB" for "furnishing all labor, materials and equipment necessary for Phase II Knud Hansen Renovations, St. Thomas, Virgin Islands." Joint Appendix "J.A." at 42-48. Attached to the preprinted IFB form was a typed sheet titled "Scope of Work — Summary/Base Bid — Phase II" "Scope of Work — Summary", which instructed bidders that the renovation project had been divided into "Base Bid" and "Add Alternates," referring to a "Bid Proposal Form" provided as one of the bidding documents. The scope of the work to be included in the Base Bid was described by reference to certain "Departments" (of the Hospital) as the building renovation portion of the work. This typed sheet further advised bidders that "the construction documents for the add-alternates will be issued as an addendum to the bid documents." To bid on the project, contractors were instructed to submit their proposals on a two-page preprinted form, "Bid for Lump Sum Construction Contract" "Bid", to which would be attached a two-page typed form, "Addendum #2" "Addendum"; all four pages were to be submitted together as one package.2 The preprinted Bid form contained standard contracting terminology, and, most significantly for this appeal, included a section labelled "BASE PROPOSAL" where the bidder was to insert the sum for which it agreed "to perform all of the work described in the specifications and shown on the plans."3 The attached Addendum provided space for the bidder to show a total Base Bid, with a breakdown of items, as well as to give specific sums for each of the Add Alternates. Finally, each bid was to be accompanied by a "Bid Guarantee" in the amount of five percent (5%) of the bid or contract price, which could be in the form of a corporate or surety bond.
While the IFB is far from clear on its face, the parties to this dispute, as well as the other bidders, all understood that the figure to be inserted in the preprinted Bid form as the "BASE PROPOSAL" was just the Base Bid figure.4 In other words, the IFB was for a lump sum to include the Base Bid and Add Alternates, even though the "lump sum" to be listed on the preprinted "Bid for Lump Sum Construction Contract" was not the total bid but just the Base Bid figure excluding the amount of the Add Alternate.
This dispute involves two discrepancies in the bid package submitted by Unlimited. First, Unlimited inserted the total of its bid proposal, $2,816,100 (Base Bid of $1,095,500 plus Add Alternates of $1,720,600, as listed on its Addendum) in the space for BASE PROPOSAL on the first page of its Bid (the Addendum is at J.A. 36-37; the Bid is at J.A. 34-35).5 There is no suggestion by appellant, any of the other bidders, or anywhere in the record that this irregularity was the product of any evil intent, much less an attempt by Unlimited to defraud the Government. Lincoln Gumbs, the principal of Unlimited, testified at trial that the total for the Base Bid and all of the Add Alternates was mistakenly entered as the BASE PROPOSAL by an inexperienced secretary in his office. Id. at 311-12.
The trial record further establishes that Procurement's Evaluation Committee readily recognized the transpositional discrepancy in Unlimited's BASE PROPOSAL item on its Bid, immediately verifying the Committee's conclusion that Unlimited intended to submit a Base Bid of $1,095,000 by simply adding up the figures on Unlimited's Addendum for Add Alternates and Base Bid to get the $2,816,100 figure. Id. at 291-92, 208, 280-81. The Evaluation Committee correctly evaluated Unlimited's proposal using the $1,095,500 Base Bid figure.
The second alleged irregularity is that Unlimited submitted a bid bond from American Builders Surety, an insurance company not authorized to do business in the Virgin Islands.6 The trial record establishes that the Government was aware of the difficulty posed for small, local contractors in obtaining bid bonds and that it had established a practice of attempting to accommodate these contractors. Id. at 270-71.
When it came time to actually award the contract, monetary constraints required that only certain of the Add Alternates items be considered for award. Using the $1,095,500 Base Bid figure, Unlimited was the lowest bidder of all contractors submitting bids, whether considered on the Base Bid alone, the total of Base Bid and Add Alternates, or the actual package of bid items allowed by the fiscal restraints, as memorialized in the memorandum of October 6, 1993, from the Evaluation Committee to the Commissioner of Property and Procurement recommending that Unlimited be awarded the contract. Id. at 40. George & Benjamin was the second lowest bidder on the basis of the package of bid items, as well as the total of Base Bid and Add Alternates.7 On October 14, 1993, Procurement sent Unlimited a Notice of Award.
Alleging that the contract had been wrongfully awarded to Unlimited, George and Benjamin filed a letter of protest with Procurement. After it did not receive a response to its protest, George and Benjamin on October 25, 1993, filed an action in the Territorial Court of the Virgin Islands for a temporary restraining order, preliminary injunction and permanent injunction to enjoin Procurement from awarding the contract to Unlimited. On November 2, 1993, the court granted the temporary restraining order and set a hearing on the requests for preliminary and permanent injunction. After two days of hearings, the trial judge denied the injunction on November 16, 1993, dictating his decision into the record from the bench and relying in large part on the decision of this Court that a reviewing court should not disturb a government contract award unless it is "irrational or illegal." General Engineering Corp. v. Apex Construction, Inc. and the Government of the Virgin Islands, Civ. No. 92-103, V.I. BBS 92CV103A.DT1 at p. 5 (D.V.I.APP.1993), vacated as moot, No. 93-7766 (3d Cir. May 27, 1994).8 This appeal followed.
Work on the project has continued; estimates of the project's completion varied widely at oral argument on November 2, 1994. This state of affairs led appellee to assert that any appeal of an injunction to halt work on the project is now moot because the project was so near to completion.
As noted by the trial judge, this Court has adopted the view that reviewing courts should not disturb the decision of government procurement agencies in awarding contracts unless the court finds that decision to have been irrational or illegal. General Engineering Corp. v. Apex Construction, Inc., supra p. 7; see Coco Brothers, Inc. v. Pierce, 741 F.2d 675, 679 (3d Cir.1984); Princeton Combustion Research Laboratories Inc. v. McCarthy, 674 F.2d 1016, 1021 (3d Cir.1982); Sea-Land Service, Inc. v. Brown, 600 F.2d 429, 434 (3d Cir.1979). On issues of law, this Court's review is plenary. Nibbs v. Roberts, 31 V.I. 196 (D.V.I.APP.1995); In re Barrett, V.I. BBS 91CI159A.DX2, 1995 WL 450466 (D.V.I.APP. Jan. 31, 1995).9
The question of mootness must first be considered briefly. A case is moot when two conditions are met: "(1) it can be said with assurance that `there is no reasonable expectation ...' that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations omitted). Appellant argues that neither condition is met in this case, and the Government contends that both are met.
Regarding the first prong of the mootness inquiry, we look to see whether either of the alleged deprivations might be suffered again by appellant. Davis suggests that the violation that must be likely to recur is not only the specific irregularity alleged in this case, but also that it is likely to happen again to the same part...
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...§ 33. However, the trial court's legal conclusions are subject to plenary review. George & Benjamin General Contractors v. Government of the Virgin Islands, 34 V.I. 117, 921 F.Supp. 304 (D.V.I.App.1996); Nibbs v. Roberts, 31 V.I. 196, 1995 WL 78295 (D.V.I.App.1995). In order to safeguard an......