City of Atlanta v. J.A. Jones Const. Co.
| Decision Date | 13 March 1990 |
| Docket Number | No. A89A1725,A89A1725 |
| Citation | 392 S.E.2d 564,195 Ga.App. 72 |
| Parties | CITY OF ATLANTA v. J.A. JONES CONSTRUCTION COMPANY. |
| Court | Georgia Court of Appeals |
Marva Jones Brooks, Joe M. Harris, Jr., Michael L. Smith, Atlanta, Bruce P. Johnson, New York City, for appellant.
Sumner & Hewes, William E. Sumner, Stephen J. Anderson, David A. Webster, Atlanta, Garrett & McManus, Bowman S. Garrett, Jr., Sheryl N. Currie, Decatur, for appellee.
The City of Atlanta (the City) appeals from a judgment, based upon a jury verdict awarding damages to the J.A. Jones Construction Company (Jones). Jones alleged the City improperly awarded the contract to build new parking decks at the Atlanta Airport to a company which submitted a late bid (Count I), and that the City deprived Jones of the contract without due process of law (Count II).
The record shows the contract requirements specified the bids must be submitted no later than 2:00 p.m., April 10, 1985. Jones and several other bidders submitted their bids by 2:00 p.m., but at 2:03 p.m., after it had been announced that no other bids would be accepted, Interstate Construction Company (Interstate) submitted its bid. Although the City apparently intended to reject Interstate's untimely bid, it was opened with the timely bids. Another bid, submitted between 2:05 and 2:10 p.m. was rejected because it was submitted after 2:00 p.m.
When the bids were opened, Interstate's bid was about $10,500 under the next lowest bid submitted by Jones, and all bids were over $13,000,000. After Jones protested the City opening the Interstate bid, it received oral assurance from the city official supervising the bid opening that Interstate's bid would be rejected.
Notwithstanding the untimely bid, Interstate started efforts to secure the contract. At 5:00 p.m. that day, at Interstate's request, the City checked the bid clock and apparently it was three minutes faster than clocks at the U.S. Bureau of Standards and a local time service. The record, however, shows the clock was never found fast in the years before or after 5:00 p.m., April 10, 1985, and no one could say that the clock was three minutes fast at 2:00 p.m. that day. Lawyers representing Interstate contacted the city's chief administrative officer and the mayor.
On April 10, 1985, Jones' attorneys sent a letter to the City protesting consideration of Interstate's bid, demanding the award of the contract to Jones, and advising of Jones' intention to sue if it was not awarded the contract. Similar letters were also sent to the City on April 23 and 25, 1985.
The uncontradicted evidence showed that time is critical right before bids are submitted, and bids are frequently adjusted at the last moment. Potential subcontractors frequently make last minute price changes, and corresponding changes are made in the bids. Consequently, bidders usually synchronize their watches with the City bid clock and maintain contact with their offices from near the bid office so they can receive the latest changes in their bid, but avoid filing a late bid. Indeed, Jones lowered its bid by over $4,000,000 in the last hours and by an additional $200,000 in the minutes before the bid was submitted. Thus, even without knowing the amounts of the other bids, a late bidder gained an important advantage by gaining additional time to revise its bid.
Jones' witnesses testified, without contradiction, that the company is very experienced in constructing large projects. More significantly, the uncontradicted testimony showed that Jones achieved its anticipated profits on those projects and on 80-90 percent of all its projects. Further, the unrebutted testimony was that cost overruns were the primary reason for not achieving the anticipated profit, that cost overruns were unlikely to occur on projects done regularly, and that the parking decks were a type project done regularly by Jones.
The evidence showed the invitation for bids called for bids on the basic project and two related projects. Jones' witnesses testified the anticipated profits from these two projects were $250,000 and over $264,000. Evidence shows that the bidder awarded the base project was awarded both additional projects.
The unrebutted evidence was that Jones' bid preparation costs were $22,125.05, that because it lost this contract it lost its expected profits on all three projects, and because it lost the projects, it laid off employees it would not have otherwise. Although the trial court ruled the expected profits on the additional projects were too speculative to permit the award of damages for their loss, the court charged the jury that it could measure the damages awarded on Count II by the loss to Jones as proved by all the evidence introduced.
The evidence showed that the three letters Jones sent to the City's procurement officials were referred to the City's law department and were never answered. Jones introduced at trial the City's Procurement Code and Real Estate Code (Atlanta Ordinance No. 1983-52, 7/21/83) ("the Code"). Article H of the Code, Appeals and Remedies contains the protest procedures. Jones was authorized to file a protest by letter and the City was required to respond within ten days, with its decision, the reasons therefor, and also informing Jones of its rights to administrative review. Section 5-5111. No such response was ever made.
Instead, the City engaged in extensive internal debate apparently caused by the successful bidder's ability to invoke the participation of the City's chief administrative officer and the mayor. Consequently, even though the City's director of the bureau of purchasing and real estate, the assistant director for contracts, and the commissioner of the department of administrative services all deemed that Interstate's bid was untimely and should be rejected and that Jones should be awarded the contract as the lowest responsible and responsive bidder (see Section 5-5044(9) ), the decision on acceptance of Interstate's bid was elevated to the mayor.
The mayor testified that he viewed the matter as a battle between city departments without consequence to the bidders, and he did not feel legal advice was needed. In the mayor's opinion, being three minutes late in submitting a bid was not significant. He felt it important to show that the spirit of the law was as important as the letter, and they should not be inflexible if a lower price could be achieved.
Moreover, the mayor's testimony admitted he decided the matter with serious misunderstandings about the facts: He believed that Interstate's bid was $150,000 lower than Jones' bid, not $10,500; that the "fast clock" was detected contemporaneously with the late bid, not three hours later; and that this was only a small project, not one for over $13,000,000. Additionally, the mayor did not know the other late bid was rejected. Further, the mayor testified he "possibly" took into consideration that Jones was a very large contractor with plenty of work and that this "little parking deck ... probably was not much for them." In spite of the above related facts, the mayor decided to accept Interstate's bid. Jones, however, only learned of this indirectly when it heard Interstate had started work on the project.
Subsequently, suit was filed, the jury verdict was for Jones on both counts, and the trial court entered judgment in favor of Jones for $1,018,506.19 plus post-judgment interest. Thereafter, the City filed this appeal. Held:
1. The City's first enumeration of error alleges the trial court permitted the award double recovery for a single injury. While double recovery is not permitted for one injury, that principle has no application here because there were two injuries (Davis v. Davidson, 175 Ga.App. 451, 452, 333 S.E.2d 648): Count I under state law for not awarding Jones the contract as required (see Hilton Constr. Co. v. Rockdale County Bd., etc., 245 Ga. 533, 538, 266 S.E.2d 157), and Count II under 42 U.S.C. § 1983 for the denial of due process (see Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548).
The City also seeks to argue under this enumeration that federal law precludes the damages given under the § 1983 count. As this contention is not included within the enumeration of error and it is not enumerated elsewhere, we may not consider it, OCGA § 5-6-40; Rider v. State, 226 Ga. 14(2), 172 S.E.2d 318. Further, the scope of appellate review may not be enlarged through a process of switching, shifting and mending one's hold. Wilson v. State, 145 Ga.App. 315(5), 244 S.E.2d 355.
2. The City's second enumeration of error asserts that the trial court's charge on "the nature of a material deviation" was erroneous. No argument, no reference to the record, or citation of authority was made in the City's brief to support this enumeration, and it is deemed abandoned. Court of Appeals Rule 15(c)(2); Sepulvado v. Daniels Lincoln Mercury, 170 Ga.App. 109, 316 S.E.2d 554. See also Cooper v. Commercial Union Ins. Co., 192 Ga.App. 815, 816, 386 S.E.2d 551.
3. The City's third enumeration contends that the trial court erred by allowing the award of damages for Jones' lost profits. Although lost profits are not recoverable when they are too speculative to permit calculation (Davis v. Boyd, 118 Ga.App. 198, 162 S.E.2d 880), this rule does not bar recovery of lost profits when they can be calculated with reasonable certainty. Moultrie Farm Center v. Sparkman, 171 Ga.App. 736, 738, 320 S.E.2d 863; Cobb & Eldridge, Ga. Law of Damages (3d ed.), §§ 2-8; 2A-8.
From the evidence about the nature of this project and Jones' prior experience (especially as viewed and resolved in favor of the verdict, Union Camp Corp. v. Daley, 188 Ga.App. 756(1), 374 S.E.2d 329), Jones proved a loss of anticipated profits which could be calculated with reasonable certainty. Moultrie Farm Center v. Sparkman, sup...
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