O. J. Photo Supply, Inc. v. McNary
| Decision Date | 25 November 1980 |
| Docket Number | No. 41483,41483 |
| Parties | O. J. PHOTO SUPPLY, INC., a corporation, Plaintiff-Appellant, v. Gene McNARY, etc. et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Gerald Tockman, Louis N. Laderman, St. Louis, Missouri, Attorneys for Appellant; Marilyn K. Wallach, Thomas Wehrle, Charles E. Roth, Clayton, Missouri, Attorneys for Respondents.
Before Stewart, P.j., Snyder, Weier, JJ.
Action for injunctive and declaratory relief brought by O. J. Photo Supply, Inc., an unsuccessful bidder for a contract with St. Louis County. The defendants are W. Schiller and Company, the successful bidder, Gene McNary, the Supervisor of St. Louis County, John Lucks, its Director of Administration, and Bruce Kendrick, the Director of the Division of Purchasing. We shall refer to O. J. Photo Supply, Inc., as plaintiff. The members of the executive departments of St. Louis County, who have been sued, will be referred to as the County and W. Schiller and Company will be referred to as Schiller. We will refer to defendants collectively as defendants. We affirm.
Plaintiff contends that the court erred in dismissing its petition for injunctive relief because there was no adequate remedy at law and because the injunction would serve to protect the public interest. The conclusion that we reach makes it unnecessary to discuss this issue. We face the single issue of whether it was proper for St. Louis County to consider a discount as a factor in the evaluation of the bids to determine the lowest bidder.
On October 9, 1978 the County issued an invitation for bid for photographic supplies for its various departments. The items the County desired to purchase were broken down into nine groups. The invitation to bid along with other terms and conditions contained the following provisions:
The bid is to be awarded to one, total low bidder; or multiple bidders (not to exceed two); whichever is more advantageous to the County. St. Louis County reserves the right to not award any contract item.
Bids were submitted by Schiller, VWR Scientific, Inc. and plaintiff. In submitting the bids Schiller offered a 2% discount if payment was made on or before the twentieth day from the date of delivery. VWR Scientific, Inc. offered a 1% discount if payment was made within ten days of delivery. Plaintiff offered no discount.
The County analyzed the bids to determine the lowest responsible bidder. In its analysis it took into consideration the discounts offered by Schiller and VWR Scientific, Inc. and awarded Groups I, III, IV and VI to Schiller and Groups II, V, VII, VIII and IX to plaintiff.
Plaintiff centers its attack upon Group I where the bids of plaintiff and Schiller were as follows:
O.J. Photo Schiller
----------- -----------
Pre-discount $ 78,522.86 $ 79,038.00
Post-discount 78,522.86 77,457.24
There is no question but that all bidders were responsible. The bid of Schiller was determined to be the lowest bid because the County took the discount into consideration in determining who had the lowest bid.
Plaintiff was aware that the County had a policy of considering discounts in the evaluation of bids for goods and services. In the year before plaintiff had been awarded a contract based on a bid in which it offered a discount of 1% if payment was made within ten days. Plaintiff's invoices in that year did not contain a statement of the terms of payment and no discounts were taken. Discounts were taken by the County with respect to other suppliers as evidenced by County's exhibits. The invoices of other suppliers contained the terms of payment which included the discount. Plaintiff testified that it did not offer a discount in its bid with respect to the contract let to Schiller because the County had not taken advantage of the discount in the previous year and it was too much trouble for plaintiff to monitor the invoices to determine whether payments were timely.
County publishes a pamphlet that had been available to the public for some four years entitled Purchasing Procedures. 1 Among other items it contains the following:
Before considering the principal issue we take note of the fact that in the argument portion of the brief plaintiff attacks the award of the contract on the ground that the granting of a discount violates the "firm pricing" provisions of the invitation to bid. We cannot read this issue into the point relied on. It is also apparent that defendants did not read the point as raising that issue because they do not address that issue in their brief. Issues raised for the first time in the argument will not be considered by the court. Rule 84.04(d); Sebree v. Rosen, 374 S.W.2d 132, 141 (Mo.1964).
We will comment, however, that in taking the discount the vendor is not changing the price on the individual items bid upon by it. The discount has no bearing on the price of the materials or services rendered by a bidder. To hold otherwise would mean that terms of payment could not be made a part of governmental contracts.
Plaintiff's principal point relied on is that the court erred in declaring that it was proper to consider the discount factor because County had not taken the discount offered by it in the 1977-1978 contract with plaintiff and because it was violative of the statutory mandate that contracts be awarded to the lowest responsible bidder. The issue presented is one of first impression. Counsel has cited no authority on point and we have found only one case that discusses the issue.
Pertinent to our discussion, § 50.660 RSMo 1969 provided:
"All contracts and purchases shall be let to the lowest and best bidder ..."
It is also provided in St. Louis County Revised Ordinances (1974):
"107.120 Competitive Bidding Required. All purchases of and contracts for supplies and contractual services shall, except as specifically provided...
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Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist.
...to shelter the rights of individuals, i.e., the unsuccessful bidder.” La Mar , 542 S.W.2d at 571. See also O. J. Photo Supply, Inc. v. McNary , 611 S.W.2d 246, 248 (Mo.App.1980) (competitive bidding laws “are enacted for the benefit of property holders and taxpayers, and not for the benefit......
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Byrne & Jones Enters., Inc. v. Monroe City R-L Sch. Dist.
...as to accomplish such purpose fairly and reasonably with sole reference to the public interest. O. J. Photo Supply, Inc. v. McNary, 611 S.W.2d 246, 248 (Mo. App. E.D. 1980)(quoting 10 McQuillin, Municipal Corporations (3d Ed.) s 29.29); see also Wring v. City of Jefferson City, 413 S.W.2d 2......