Bradley v. Iowa Dept. of Personnel
| Decision Date | 08 July 1999 |
| Docket Number | No. 97-1567.,97-1567. |
| Citation | 596 N.W.2d 526 |
| Parties | Anna BRADLEY and Bradley Computer Training Consultants, Inc., Appellants, v. IOWA DEPARTMENT OF PERSONNEL, Iowa Department of Management, and Iowa Department of Economic Development, Appellees. |
| Court | Iowa Supreme Court |
Victoria L. Herring, Des Moines, for appellants.
Thomas J. Miller, Attorney General, and Grant K. Dugdale, Assistant Attorney General, for appellees.
Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ.
Bradley Computer Training Consultants, Inc., a computer training business, and Anna Bradley, its proprietor, appeal from an adverse judgment in their challenge to the contract-letting procedures of certain state agencies. For convenience in reference, we will discuss the case as if Anna Bradley is the only appellant. The appellees are the Iowa Department of Personnel (IDP), the Iowa Department of Management (IDM), and the Iowa Department of Economic Development (DED). After reviewing the record and considering the arguments presented, we affirm the judgment of the district court in part, reverse it in part, and remand the case for further proceedings in that court.
In 1993, before Bradley had commenced business, IDP took competitive bids for computer skills training courses. This was in connection with its program for personnel development seminars. The bids were for specifically cataloged programs on stated dates for a period of one fiscal year. The contract was awarded to Integrated Software Solutions, Inc. (ISS). The contract did not contain an option for renewal without rebidding. Notwithstanding this circumstance, IDP renewed ISS's contract for the same or modified catalog programs for each successive fiscal year through June 30, 1996.
In October 1995 Bradley learned that the Iowa Department of Transportation (DOT) needed sixty introductory level computer training sessions. She contacted DOT and offered to submit a bid for these programs. She was advised by DOT that IDP supplied that agency with computer training services. Thereafter, Bradley contacted the director of IDP's program for personnel development seminars and inquired about DOT's training requirements. She was advised that the vendor under contract with IDP for its catalog programs would also be handling the special training sessions required by DOT.
Later, Bradley received information from an IDP facilitator that the contract for the personnel development seminars that were cataloged for the fiscal year commencing July 1, 1996, would be submitted to bid in June of 1996. She did not submit a bid for that contract because the number of training sessions specified in the catalog program was beyond her company's capacity. Four companies did bid on the catalog program for the fiscal year beginning July 1, 1996. Those bids were reviewed by a four-person committee, which scored the agency's current vendor, ISS, as the most qualified bidder and awarded the contract to that company.
Bradley brought this action for review of agency action pursuant to Iowa Code chapter 17A. She challenged the procedures that were used by the agencies in question in contracting with personal service vendors. She maintained that, in acting without a competitive bidding process, the agencies were violating Iowa Code section 18.6(1) (1993), Executive Order 50, and other agency regulations. She also contends that the awarding of the July 1, 1996 contract to ISS was invalid because of advantages that company had secured through its prior dealings with the state. She also contends that one member of the four-person committee that evaluated the bids had a conflict of interest because of that person's relationship with the president of ISS. We consider each of these contentions. Other facts that bear on our decision will be stated in connection with our discussion of the legal issues presented.
Bradley urges that Iowa Code section 18.6(1), which specifies that "[a]ll equipment, supplies, or services procured by the department [of general services] shall be purchased by a competitive bidding procedure," is applicable to the purchases of computer training services by IDP that are at issue here. She bases this contention on the language of section 18.3(1), which provides, in part, "all items of general use shall be purchased through the department [of general services]." In the implementation of section 18.3(1), DGS has issued regulations identifying three types of contract purchases subject to this central purchasing mandate. These are (1) the purchase of items that are in general use by all agencies such as typewriters, photographic film, adding machines, lavatory supplies, filing cabinets, hand tools, and light bulbs; (2) specific commodities that are primarily used by one agency and that are not commonly needed by another agency such as uniforms, janitorial services, shelving, ice and snow removal, survey equipment and supplies; and (3) commodities for which standard state specifications have been established and which are in common use by a majority of the state agencies. Iowa Admin. Code r. 401-7.3.
Another DGS regulation specifies that, with respect to the purchase of data processing equipment, services, and software, all vendors shall be given a fair and reasonable opportunity to offer their products to the state. Iowa Admin. Code r. 401-8.1. That rule is made applicable to "systems and programming procedures" and "nonmechanized and nonphysical components, arrangements, procedures, programs, services, sequences and routines utilized to support, guide, control, direct, or monitor data processing equipment or applications." Iowa Admin. Code r. 401-8.2.
The district court rejected Bradley's claim that the IDP training programs at issue here were subject to the central purchasing mandates that require acquisition through DGS. It based that conclusion on the provisions of section 18.3(1), which limit the central purchasing mandate to "all items of general use." With regard to the specific DGS regulations pertaining to computer equipment and software, the district court held that these did not embrace contracts for the training of agency personnel.
We are satisfied that the district court correctly interpreted the central purchasing mandate of section 18.3(1) and the applicable administrative regulations. The categories of contracting specified in the DGS regulations do not suggest that personal service contracts for the training of employees are subject to the central purchasing mandate. Those regulations of DGS specifically relating to computer services do not extend to contracts for the training of agency personnel in the use of new technology acquired by the state. Bradley may prevail on this theory only if DGS was mandated by section 18.3(1) to include these personal service contracts within its central purchasing procedures. We do not believe that the statute contains such a mandate.
Other jurisdictions, who have not statutorily excluded personal or professional service contracts from competitive bidding, have determined that competitive bidding requirements do not apply to contracts for personal or professional services. See 64 Am.Jur.2d Public Works & Contracts § 43, at 896-98 (1972) (); 72 C.J.S. Public Contracts § 9 (1975); 10 Eugene McQuillin, Law of Municipal Corporations § 29.35 (3d ed. rev.1999); see also Parker v. Panama City, 151 So.2d 469, 472 (Fla.Dist.Ct. App.1963)
(); Attlin Constr., Inc. v. Muncie Community Schs., 413 N.E.2d 281, 287-88 (Ind.Ct.App.1980) (same); State ex rel., Doria v. Ferguson, 145 Ohio St. 12, 60 N.E.2d 476, 478 (1945) (same); McMaster Constr., Inc. v. Board of Regents of Oklahoma Colleges, 934 P.2d 335, 338 (Okla.1997) (same); Waste Management, Inc. v. Wisconsin Solid Waste Recycling Auth., 84 Wis.2d 462, 267 N.W.2d 659, 665 (Wis.1978) (same). But cf. Fisher v. Department of Labor, 265 So.2d 817 (La.Ct.App.1972) (). The Iowa Legislature has expressed agreement with the general rule by explaining, in conflicts-of-interests statutes, that the competitive bid requirement necessary in those provisions to avoid an invalid contract does not apply to a contract for professional services, which is not customarily awarded by competitive bid. See Iowa Code § 331.342(4) (1997).
The Iowa Attorney General has also adopted this position. The attorney general expressed, in two opinions, that competitive bidding procedures may not apply to contracts for professional services. See 1994 Iowa Op. Att'y Gen. 141; 1992 Iowa Op. Att'y Gen. 192. The attorney general explained that the selection of professional services may turn on subjective elements that are not susceptible to formulation in the bidding process. See 1992 Iowa Op. Att'y Gen. 192. Although this court is not bound by an opinion of the attorney general, the opinion is entitled to the court's respectful consideration. City of Clinton v. Sheridan, 530 N.W.2d 690, 695 (Iowa 1995); Woodbury County v. City of Sioux City, 475 N.W.2d 203, 207 (Iowa 1991).
As an alternative to the argument that we considered in the prior division of this opinion, Bradley urges that IDP's contracting...
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