Pace Const. Co. v. Missouri Highway and Transp. Com'n, s. WD

• Decision Date: 23 August 1988
• Docket Number: Nos. WD,s. WD
• Citation: 759 S.W.2d 272
• Parties: PACE CONSTRUCTION COMPANY, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent. and Girardeau Contractors, Inc., Intervening Respondent. PACE CONSTRUCTION COMPANY, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent, and Jefferson Asphalt, Co., Intervening Respondent. 40470, WD 40699.
• Court: Missouri Court of Appeals

Page 272

759 S.W.2d 272

PACE CONSTRUCTION COMPANY, Appellant, v.MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent. andGirardeau Contractors, Inc., Intervening Respondent.

PACE CONSTRUCTION COMPANY, Appellant, v.MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent, andJefferson Asphalt, Co., Intervening Respondent.

Nos. WD 40470, WD 40699.

Missouri Court of Appeals Western District.

Aug. 23, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 1988.

Application to Transfer Denied

Nov. 15, 1988.

R.W. Miller, Sherman Botts, Kansas City, for appellant.Greg Schroeder, Jefferson City, for respondent.

Lehman Finch, Cape Girardeau, for intervening respondentGirardeau Contractors, Inc.

Robert Hyder, Jefferson City, for intervening respondentJefferson Asphalt Co.

Before KENNEDY, C.J., and TURNAGE and BERREY, JJ.

BERREY, Judge.

The present case involves the consolidation of two appeals by Pace Construction Company(Pace) challenging the actions of the Missouri Highway and Transportation Commission(Commission) in regard to the award of contracts in two competitively bid public projects.

In the action filed by Pace against the Commission in which Girardeau Contractors, Inc., (Girardeau) intervened the facts are as follows.In the fall of 1987, the Commission invited bids on a public construction project involving bridge rehabilitation and resurfacing on Interstate 55 in New Madrid County, Missouri.The three bids received by the Commission were opened on November 25, 1987, and publicly read aloud.The Commission's staff tabulated the bids after the opening pursuant to the Missouri Standard Specifications for Highway Construction, 1986.Pursuant to § 102.6 of the Standard Specifications, each bidder specifies a unit price for each line item in the bid.This unit price is then multiplied by the quantity specified for each respective line item to arrive at an extended price.These extensions are then totalled.This tabulation is then compared to the tabulations of the other competing bids and the contract is then awarded to the lowest bidder.Based upon this tabulation, Pace was apparently the lowest bidder, with a bid of $2,267,152.39.Girardeau was apparently third with a bid of $2,851,588.68.

Upon closer examination of the Girardeau bid, the Commission discovered a discrepancy in one of the line items.ItemNo. 617-50.10, "relocating temporary traffic barrier, per linear foot," had a unit price of $316.00.The estimated quantity of this item was 2,330.The extended price, handwritten by the bidder Girardeau, was shown as $7,362.80, a figure which obviously is not the product of $316.00 multiplied by 2330.

After the discrepancy was discovered, the Commission tried to determine what price was intended by Girardeau.The Commission compared this item in the Girardeau bid to the other bids and its own estimates.It also looked at the worksheets used by Girardeau in preparing the bid.The Commission determined that the correct price of the item in the Girardeau bid was $3.16 ($7,362.80 divided by 2330).The Commission met on December 11, 1987 and corrected the price on ItemNo. 617-50.10, changing the $316.00 figure which would yield an extended price of $736,280.00, to a figure of $3.16 for an extended price of $7,362.80.This change was then reflected in the total of Girardeau's bid, which corrected as $2,122,671.48.Based upon this figure Girardeau, as low bidder, was awarded the contract.

Pace contends that the Commission erred in interpreting the Girardeau bid in this fashion.They believe that the unit price of $316.00 was not a clerical error and that § 102.6 of the Standard Specifications which states that unit price will govern in the case of discrepancies should be followed.Thus, Pace contends that the extended price of $736,280.00 is the correct figure to use for tabulation of the entire amount bid and this tabulation makes them low bidder.

After the Commission changed the Girardeau bid, Pace filed an action for declaratory judgment, temporary restraining order and preliminary and permanent injunction in the Cole County Circuit Court against the Commission.Girardeau intervened in the action.The court denied Pace's petition for a temporary restraining order and preliminary and permanent injunction, finding in favor of the Commission and Girardeau.This appeal followed.

The suit filed by Pace against the Commission in which Jefferson Asphalt Co.(Jefferson) intervened, involves a similar set of circumstances.On April 29, 1988, the Commission opened bids submitted on a project combining several projects in Maries County, Osage County and Gasconade County.Again, the Commission followed the tabulation procedures of § 102.6 in the Standard Specifications.Based upon this tabulation, Pace apparently submitted the lowest responsive bid at $1,070,526.05.Jefferson was apparently the second lowest bidder at $1,190,676.43.

A discrepancy was found in ItemNo. 614-10.10, "grates and bearing plates, per pound."In Jefferson's bid the unit price was given at $150.00 and the quantity listed for the item was 1,090, which would yield an extended price of $163,500.00.The handwritten extension price totalled $1,635.00.Once again, after investigation, the Commission determined that Jefferson's unit price of the item, $150.00, was an error and corrected the figure to $1.50 (1635.00 divided by 1090).Based upon this correction, the Jefferson bid totalled $1,028,811.43 and was, thus, the lowest responsive bid on the project.The Commission awarded the contract to Jefferson.

Pace disputes this interpretation of the bid, arguing that because unit price is used in tabulating the bids, the extended price was in error and thus, as lowest bidder, they should have been awarded the contract.

Pace filed suit in the Cole County Circuit Court for declaratory judgment, temporary restraining order and preliminary and permanent injunction against the Commission.Jefferson intervened in the action.The court ultimately ruled against Pace and this appeal followed.

The two cases outlined above were consolidated for the purposes of this appeal.In addition to the appeal filed by Pace, a motion to dismiss was filed by respondent Jefferson and this motion was taken with the case.The motion to dismiss raises the question of whether Pace lacked standing to bring the appeal.This question was also raised by the Commission at the lower court level.As the question of standing is antecedent to any review on the merits of the case by this court it must logically be considered first.

Essentially, the inquiry on this issue can be reduced to two questions: (1) when does the question of standing need to be raised?; and (2) does Pace have standing to maintain this action?

Pace maintains that this court has no authority to review the issue regarding taxpayer standing because the respondents failed to preserve the issue in that they failed to comply with the notice of appeal requirements of Rule 81.04.They point to State ex rel. Ashcroft v. Marketing Unlimited of America, Inc., 613 S.W.2d 440(Mo.App.1981) in support of this contention, where that court held that, "[t]he filing of a timely notice of appeal is mandatory and is jurisdictional."Id. at 447.While this statement of law is correct, it is not complete and is, in a sense, misleading.The question of standing, "does not relate to the legal capacity to sue, a defense waived unless timely asserted ... but to...