Miss. State Port Auth. at Gulfport v. Eutaw Constr. Co.

• Decision Date: 09 June 2022
• Docket Number: 2020-IA-00881-SCT
• Citation: 340 So.3d 303
• Parties: The MISSISSIPPI STATE PORT AUTHORITY AT GULFPORT v. EUTAW CONSTRUCTION COMPANY, INC.
• Court: Mississippi Supreme Court

340 So.3d 303

The MISSISSIPPI STATE PORT AUTHORITY AT GULFPORT

v.EUTAW CONSTRUCTION COMPANY, INC.

NO. 2020-IA-00881-SCT

Supreme Court of Mississippi.

June 9, 2022

ATTORNEYS FOR APPELLANT: M. BRANT PETTIS, BEN H. STONE, MARK E. BOND, JAMES E. LAMBERT, III, Gulfport

ATTORNEYS FOR APPELLEE: DORSEY R. CARSON, JR., Jackson, ERIC F. HATTEN, LINDSAY K. ROBERTS, KATHRYN P. GOFF, KELLI M. SLATER

BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. This matter involves the award of a construction contract by the Mississippi State Port Authority at Gulfport (the MSPA) to the low-bidder, W.C. Fore Trucking, Inc. (Fore). Eutaw Construction Company, Inc. (Eutaw), another bidder, challenged that award, and the Circuit Court of the First Judicial District of Hinds County reversed the MSPA's decision to award the contract to Fore. The MSPA appealed. Finding error, this Court reverses and renders the decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶2. The Mississippi Legislature created the MSPA as an agency responsible for the development and operation of the state port located in Gulfport, Mississippi. See Miss. Code Ann. § 59-5-1 through -69 (Rev. 2013). Following the aftermath of Hurricane Katrina and pursuant to its statutory responsibility, the MSPA undertook a massive restoration of the state port consisting of various construction projects. One of those projects was the West Pier +25 Fill-Phase 1, Project No. 005 (the Project), the construction project at issue here.¹

¶3. The MSPA issued a bid solicitation for the Project on February 1, 2012. The deadline to submit a bid was 10:00 a.m. on March 2, 2012. On February 24, 2012, the MSPA issued Addendum No. 1 to the bid solicitation. This addendum doubled the quantity of riprap and aggregate base course for the purpose of constructing a temporary haul ramp for the Project. Additionally, Addendum No. 1 required bidders to submit bids on a revised bid form, which recognized the addendum's change to the bid solicitation.²

¶4. On March 6, 2012, the MSPA publically opened the bid envelopes submitted for the Project. Among the eleven bidders were Eutaw and Fore. Fore's bid was $19,956,587.98, which was the lowest bid. Eutaw submitted the second-lowest bid of $22,905,525. Unbeknownst to the other bidders, however, the MSPA wrote a letter to Fore on March 7, 2012, informing Fore of errors in its bid.

¶5. The errors identified by the MSPA in its March 7, 2012 letter are recited here verbatim:

1) The original Bid Form, instead of the amended Bid Form that was provided to the bidders, was used by Fore Trucking;

2) The calculations of the cost for certain line items in the Bid Form are incorrect; and

3) The sum of the line item amounts in the Bid Form is significantly less than the "TOTAL AMOUNT OF BASE BID" shown in the Bid Form.

In the letter, the MSPA recited the relevant rule from the Procurement Manual of the Mississippi Department of Finance and Administration, Rule 3.106.12.4, that governs the MSPA's evaluation and decision after the opening of sealed bids and the discovery of errors in a submitted bid but before the time of the award of the contract. Rule 3.106.12.4 provides as follows:

(1) Minor Informalities

Minor informalities are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible. The Agency Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples include the failure of a bidder to:

(a) Return the number of signed bids required by the Invitation for Bids;

(b) Sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound;

(c) Failure to submit literature or samples with bid provided that such literature or samples shall be received prior to any award being made; or

(d) Acknowledge receipt of an amendment to the Invitation for Bids, but only if:

(I) It is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

(ii) The amendment involved had a negligible effect on price, quantity, quality, or delivery.

(2) Mistakes Where Intended Correct Bid Is Evident

If the mistake and the intended correct bid are clearly evident on the bid document, the bid shall be corrected on the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the bid document are typographical errors, errors in extending unit prices, and mathematical errors.

(3) Mistakes Where Intended Correct Bid is Not Evident

A bidder may be permitted to withdraw a low bid if:

(a) A mistake is clearly evident on the bid document, but the intended correct bid is not similarly evident; or

(b) The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

12 Miss. Admin. Code Pt. 6, R. 3.106.12.4 (adopted Jan. 1, 2018), Westlaw.

¶6. As stated previously, the first error identified by the MSPA involved Fore's submitting its bid on the original bid form instead of the revised bid form as required by Addendum No. 1. This error caused Fore's bid to include incorrect quantities for riprap and aggregate base course.³ Fore, however, affirmatively indicated in its bid that it received Addendum No. 1. Specifically, Fore recognized the addendum by hand-writing "1" and "2/24/2012" in a specified blank on the bid form that asked for bidders to note any addenda that have been received by that bidder. For this reason, the MSPA determined in its letter that "it is Fore Trucking's position that its item total amounts for Riprap and the Aggregate Base Course were based on the quantities specified in the amended Bid Form (4,400 SY and 5,000 SY, respectively)." (Emphasis added.) The MSPA determined that

Based on this representation from Fore Trucking that it intended to bid $159,732.50 for 4,400 SY of Riprap and $35,000.00 for 5,000 SY of Aggregate Base Course, the MSPA finds under Rule 3.106.12.4(1) of the Procurement Manual that it is in the State's best interest to allow Fore Trucking to correct this informality by resubmitting its bid on the amended Bid Form.

The MSPA further decided that the correction of this error would not prejudice the other bidders. The total bid for these items, $159,732.50 and $35,000, were the same on both the original and revised bid forms submitted by Fore. Only the price per unit changed.

¶7. The second error involved incorrect calculations of certain line item total costs.⁴ Specifically, Fore incorrectly multiplied the quantity and the unit price of certain line items. In its letter, the MSPA determined these "mathematical errors to be either minor informalities that do not prejudice other bidders or mistakes where the intended correct bid is evident under Rule 3. 106.12.4(1) and (2) of the Procurement Manual." The MSPA decided that it was in the State's best interest to allow these errors to be corrected.

¶8. The third error involved a discrepancy between the sum of the line item totals and the "total amount of base bid" that Fore expressed in its bid. Fore listed the "total amount of base bid" as $19,956,587.98. The sum of the line item totals, however, was $19,121,886.96. The original bid form and the revised bid form both provided that "[i]n the case of discrepancy between the sum of the items and the Total Amount of Bid, the sum of the items shall be considered to be the Total Amount of Bid." Based on that language, the MSPA determined that the "controlling total amount" of Fore's bid was $19,116,447.98, i.e., the sum of the line item totals ($19,121,886.96) less the overages resulting from the calculation errors addressed under the second error ($5,439.98). The MSPA further determined that the intended correct bid amount was not evident from the Bid submitted. Accordingly, the MSPA decided that it "will accept Fore Trucking's Bid of $19,116,44[7].98 or allow Fore Trucking to withdraw its Bid under the provisions of Rule 3.106.12.4(3) of the Procurement Manual."

¶9. On March 8, 2012, Fore sent a reply letter to the MSPA that acknowledged the errors it had made. Attached to Fore's reply letter was the revised bid form that included the pertinent corrections pursuant to the March 7, 2012 MSPA letter. This time, along with the other corrections, Fore listed the "total amount of base bid" as $19,116,447.98, as advised by the MSPA. The MSPA then declared Fore the lowest bidder and awarded it the Project contract.

¶10. On March 12, 2012, Eutaw formally submitted a bid protest to the MSPA that challenged the MSPA's decision to award the contract to Fore. In its bid protest, Eutaw indicated that it had "reason to believe" Fore was a nonresponsive bidder. The MSPA found Eutaw's bid protest without merit and issued a denial shortly after Eutaw submitted its bid protest. Eutaw filed a supplemental bid protest, but the MSPA did not respond. Eutaw then appealed the MSPA's decision to the circuit court.⁵

¶11. Eutaw's appeal to the circuit court began on April 24, 2012 when it filed its "Notice of Appeal and Bill of Exceptions." The MSPA, on May 29, 2012, sought to dismiss this appeal by arguing that Eutaw could only proceed via writ of certiorari. In response, Eutaw filed its original and amended petition for writ of certiorari in a new case. Again, the MSPA filed a motion to dismiss and argued lack of jurisdiction.

¶12. Eutaw moved to consolidate the two cases, and the circuit court consolidated them on November 20, 2012. The circuit court heard oral arguments on February 21, 2013. The MSPA filed a third motion to dismiss but withdrew that filing after the circuit court—on February 28, 2014—ultimately decided to grant Eutaw's amended petition for writ of certiorari and agreed to hear the merits of the...