Power Systems Analysis, Inc. v. City of Bloomer

Decision Date24 October 1995
Docket NumberNo. 95-0458,95-0458
Citation541 N.W.2d 214,197 Wis.2d 817
Parties, 49 A.L.R.5th 943 POWER SYSTEMS ANALYSIS, INC., Plaintiff-Appellant, v. CITY OF BLOOMER, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Carol S. Dittmar and John D. Leary of Garvey, Anderson, Johnson, Gabler & Geraci, S.C. of Eau Claire.

On behalf of the defendant-respondent, the cause was submitted on the brief of William G. Thiel of Weld, Riley, Prenn & Ricci, S.C. of Eau Claire.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Power Systems Analysis, Inc. appeals a judgment dismissing its complaint against the City of Bloomer. Power sought damages and injunctive relief preventing the City from awarding a contract to Hooper Construction Corporation, claiming that the City lacked the authority to accept Hooper's late bid for a construction project. Because we conclude that it is within the City's discretionary powers to accept late bids for public construction contracts, we affirm the trial court's dismissal of Power's complaint.

The relevant facts are undisputed. In November 1994, the City circulated a request for bids for the construction of an electric substation and distribution facilities. The notice stated that bids were due December 12, 1994, at 1 p.m. local time. Shortly after 1 p.m. on December 12, the bids were opened. It was determined that Power was the lowest bidder. Then, at 2:30 p.m., the City received a late bid from Hooper that was $80,000 lower than Power's bid. 1 The City subsequently awarded Hooper the contract.

Power filed a complaint against the City seeking declaratory and injunctive relief. The complaint alleged four causes of action: (1) breach of contract; (2) breach of statutory duty to award the contract to the lowest responsible bidder; (3) no discretion to waive the untimeliness of the late bid; and (4) abuse of discretion for awarding the contract to the late bidder. The trial court considered the parties' briefs, affidavits and oral argument and ultimately ruled that: (1) the City possessed the discretion to waive the untimeliness of the late bid; and (2) no contract was formed when Power was initially informed it was the lowest bidder. Therefore, the trial court denied Power's request for injunctive relief and dismissed Power's entire complaint with prejudice.

Power raises a single issue on appeal: whether the City has discretion to accept a late bid for work contracts after all timely bids have been opened. 2 The issue presented in this appeal concerns the construction of § 62.15, STATS., which is reviewed as a question of law without deference to the trial court. State v. Pham, 137 Wis.2d 31, 33-34, 403 N.W.2d 35, 36 (1987).

Section 62.15, STATS., governs contracts for public construction that exceed $10,000 and provides in relevant part:

(1) CONTRACTS; HOW LET. All public construction, the estimated cost of which exceeds $10,000, shall be let by contract to the lowest responsible bidder; all other public construction shall be let as the council may direct....


(5) REJECTION OF BIDS. The power to reject any and all bids shall exist unless expressly waived. The board of public works may reject any and all bids, if, in their opinion, any combination has been entered into to prevent free competition. The council may, if it be of the opinion that any of the bids are fraudulent, collusive, excessive or against the best interests of the city, by resolution adopted by two-thirds of its members, reject any or all of the bids received and order the work done by the city directly under the supervision of the board of public works....

Neither party disputes that under § 62.15(1), STATS., certain contracts shall be let only to the lowest responsible bidder. Additionally, neither party disputes the City's power under § 62.15(5), STATS., to reject any and all bids, unless the power is expressly waived. At issue is whether the City has the discretion to open a late bid after the timely bids have been opened.

Power argues that when the City was presented with the late bid, it had two choices under § 62.15(1) and (5), STATS.: accept the lowest timely bidder (Power), or reject all bidders and reopen the project for bidding. Power argues that because the City did neither, the City's action was "clearly outside the statutory directives" found in § 62.15(1). 3 Additionally, Power offers decisions from numerous other jurisdictions in support of its position that late bids are not capable of acceptance. 4

Like Power, the City argues that § 62.15, STATS., is clear. However, the City disagrees with what the statute clearly provides. The City states, "[T]he legislature has simply not spoken to the issues of establishing a bid opening time and the acceptability or unacceptability of considering bids submitted thereafter." Therefore, the City argues, because the legislature has failed to speak, courts should be hesitant to engage in micro management of local, municipal affairs.

The purpose of the rules of statutory construction is to give effect to the legislative intent. Pham, 137 Wis.2d at 34, 403 N.W.2d at 36. When determining legislative intent, this court first examines the language of the statute itself and will resort to extrinsic aids only if the language is ambiguous. Id.; In re P.A.K., 119 Wis.2d 871, 878, 350 N.W.2d 677, 681-82 (1984). If a statute is ambiguous, we look to its content, subject matter, scope, history and the object to be accomplished to ascertain its reasonable meaning. Boltz v. Boltz, 133 Wis.2d 278, 284, 395 N.W.2d 605, 607 (Ct.App.1986). A statute is ambiguous if reasonable persons could disagree as to its meaning, and whether a statute is ambiguous is a question of law. Id.; In re D.S., 142 Wis.2d 129, 134, 416 N.W.2d 292, 294 (1987). Absent any ambiguity, this court gives the language its ordinary meaning. State ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225-26, 496 N.W.2d 177, 179 (Ct.App.1992).

We begin with our examination of the statute's language. Pham, 137 Wis.2d at 34, 403 N.W.2d at 36. We agree with both parties that § 62.15(1), STATS., requires that contracts be awarded to the lowest responsible bidder and that under § 62.15(5), STATS., cities are explicitly authorized to reject bids. Furthermore, we observe that the statute does not address the specific details of the bidding process or a city's power to accept late bids. We agree with the City that this silence signifies not ambiguity but a legislative decision to leave specific aspects of the bidding process to the discretion of each city. Therefore, we conclude that while § 62.15 does not explicitly authorize a city to accept a late bid, a city is not precluded from doing so under the statute. Instead, the decision is within the City's discretionary powers and is subject to judicial review. See State ex rel. Hron Bros. v. Port Washington, 265 Wis. 507, 509-10, 62 N.W.2d 1, 2 (1953). 5

Our conclusion that the City has discretion to accept late bids is consistent with our supreme court's observation that statutes conferring the power to let contracts to the lowest responsible bidder imply the exercise of discretion. Aqua-Tech, Inc. v. Como Lake Protect. & Rehab. Dist., 71 Wis.2d 541, 549, 239 N.W.2d 25, 29 (1976). 6 Additionally, our conclusion follows our supreme court's directive that statutory bidding provisions be read in light of the reason for their enactment, lest they be applied where they were not intended to operate and thus deny the authorities the ability to deal with problems in a sensible, practical way. Waste Management, Inc. v. Wisconsin Solid Waste Recycling Auth., 84 Wis.2d 462, 470, 267 N.W.2d 659, 663-64 (1978).

Statutory bidding requirements are designed to prevent fraud, collusion, favoritism and improvidence in the administration of public businesses, as well as to insure that the public receives the best work or supplies at the most reasonable price practicable. Aqua-Tech, 71 Wis.2d at 550, 239 N.W.2d at 30 (citing Blum v. Hillsboro, 49 Wis.2d 667, 671, 183 N.W.2d 47, 49 (1971)). Recognizing the City's discretion to accept late bids will further the City's ability to deal with problems in a sensible, practical way and thereby enable the City to attain the statutory goals of preventing fraud and insuring that the public receives the best work at the most reasonable price.

Power argues that other jurisdictions have determined that late bids are not capable of acceptance. These decisions are, of course, cited only as persuasive authority. We do not find them persuasive. First, cases in other jurisdictions are based on statutes and rules different from those in Wisconsin. For example, in Rexton, Inc. v. State, 521 N.W.2d 51 (Minn.App.1994), the Minnesota Court of Appeals held that where a courier responsible for delivering a bid was delayed due to bad weather conditions and the bid was therefore delivered one minute late, the lateness was a deficiency that could not be waived at the state's discretion. Id. at 53-54. The court based its decision in part on a state rule requiring that late bids were to be returned unopened. Id. at 53. Power has cited no similar Wisconsin rule that would indicate that our state has made a policy determination that late bids are unacceptable.

Moreover, our courts have recognized a city's power to exercise discretion in the bidding process and the need to give cities the ability to deal with problems in a sensible, practical way. See Envirologix Corp. v. Waukesha, 192 Wis.2d 277, 291-92, 531 N.W.2d 357, 364 (Ct.App.1995); Waste Management, 84 Wis.2d at 470, 267 N.W.2d at 663-64. It is not this court's role to impose restrictions on a city's discretion in the bidding process where the legislature has been silent on the issue, as it has been in § 62.15, STATS. If...

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3 cases
  • State v. Mueller
    • United States
    • Wisconsin Court of Appeals
    • March 28, 1996
    ...element. A statement by a court regarding an issue never briefed is not a holding. See Power Systems Analysis, Inc. v. City of Bloomer, 197 Wis.2d 817, 827, 541 N.W.2d 214, 218 (Ct.App.1995) (judicial discussion of issues not raised or briefed on appeal is dicta). Thus, we did not hold in S......
  • Glacier State Distribution Services, Inc. v. Wisconsin Dept. of Transp.
    • United States
    • Wisconsin Court of Appeals
    • August 6, 1998
    ...such a case. 7 We noted this apparent inconsistency between Aqua-Tech and the earlier cases in Power Systems Analysis, Inc. v. City of Bloomer, 197 Wis.2d 817, 541 N.W.2d 214 (Ct.App.1995). However, because there was no claim in Power Systems that the bidding authority had misused its discr......
  • D.M.K., Inc. v. Town of Pittsfield
    • United States
    • Wisconsin Court of Appeals
    • February 28, 2006
    ...2. Defending the notion that it has broad discretionary powers, the Town cites our decision in Power Sys. Analysis, Inc. v. City of Bloomer, 197 Wis.2d 817, 541 N.W.2d 214 (Ct.App.1995), where we held that a municipality had discretion to accept a late bid. Id. at 824, 541 N.W.2d 214. Our d......

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