R.D. Brown Contractors v. Board of Educ.
| Decision Date | 13 February 2006 |
| Docket Number | No. S05A1422.,S05A1422. |
| Parties | R.D. BROWN CONTRACTORS, INC. v. BOARD OF EDUCATION OF COLUMBIA COUNTY et al. |
| Court | Georgia Supreme Court |
Capers, Dunbar, Sanders & Bruckner, Paul Hammond Dunbar, III, Augusta, for appellant.
Fleming, Jackson, Ingram & Floyd, William Meehan Fleming, Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Augusta, for appellee.
R.D. Brown Contractors, Inc. ("Brown") appeals from the denial of its petition for an interlocutory injunction. For the reasons that follow, we affirm.
The Board of Education of Columbia County ("Board") issued an invitation for bids for the construction of a new school. Brown and McKnight Construction Co. ("McKnight") each bid for the construction contract. The invitation for bids stated that bids would be "publically opened and read aloud" at 2:00 p.m., March 15, 2005. The invitation also stated that Additionally, the invitation stated that "[the Board] reserves the right to reject any or all bids and to waive technicalities and informalities and to award the project on whatever basis is in the interest of [the Board]."
Both contractors submitted their bids on time; Brown's bid was $11,318,000.00 and McKnight's was $11,259,000.00. McKnight's bid, however, did not include a list of subcontractors and was initially rejected by the bid administrator. McKnight provided a subcontractor list by 3:45 p.m. that day, and at a later meeting, the Board voted to accept the McKnight bid.
Brown filed a petition requesting the superior court to issue a temporary restraining order, interlocutory and permanent injunctions against the Board to prevent it from proceeding with a contract with any entity other than Brown, a writ of mandamus to compel the Board to award the contract to Brown, and a declaratory judgment that Brown is entitled to the award of the contract.1 The court issued a temporary restraining order. After a hearing, the court denied the request for an interlocutory injunction and vacated the temporary restraining order, determining that it was unlikely that Brown would prevail on the merits, and that delaying the construction of the school would impose "enormous consequences" on the citizens of the county.2 Brown appeals from this ruling.3
OCGA § 9-5-8. Brown contends that in denying the interlocutory injunction, the court, improperly, relied solely on its determination that Brown was unlikely to prevail on the merits of its suit. As noted above, the court also referenced the impact of a delay on the Board's operation of the public schools. Further [a] trial court may grant an interlocutory injunction [Cit.] In establishing an equitable balance between the opposing parties, the likelihood of the applicant's ultimate success is not the determinative factor. [Cit.] See also Zant v. Dick, 249 Ga. 799, 800, 294 S.E.2d 508 (1982) () (Emphasis supplied.) Although the merits of the case are not controlling, they nevertheless are proper criteria for the trial court to consider in balancing the equities. If the trial court determines that the law and facts are so adverse to a plaintiff's position that a final order in his favor is unlikely, it may be justified in denying the temporary injunction because of the inconvenience and harm to the defendant if the injunction were granted. [Cits.] Thus, in determining whether the equities favor one party or the other, a trial court may look to the final hearing and contemplate the results. [Cits.]
Garden Hills Civic Assn. v. MARTA, 273 Ga. 280, 281(1), 539 S.E.2d 811 (2000) (Internal punctuation omitted).
Public works bidding is regulated by Chapter 91 of Title 36 of the Official Code of Georgia. Determining whether the Board's action was lawful involves the interplay of three statutes therein. Under OCGA § 36-91-21(b)(4), such a "contract shall be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids...." OCGA § 36-91-2(12) defines "responsive bidder" as "a person or entity that has submitted a bid or proposal that conforms in all material respects to the requirements set forth in the invitation for bids or request for proposals."4 Finally, OCGA § 36-91-20(c) states that "[g]overnmental entities shall have the authority to reject any and all bids or proposals and to waive technicalities and informalities."
Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 53(1), 597 S.E.2d 367 (2004). The statement in OCGA § 36-91-21(b)(4) that the contract go to one who "meets the requirements and criteria set forth in the invitation for bids" cannot mean that every statement in the invitation for bids must be met precisely and without deviation; such a reading would render superfluous OCGA § 36-91-21(b)(4)'s specification that the recipient also meet the definition of a "responsive bidder," and thus would render meaningless the definition of a responsive bidder as one whose bid "conforms in all material respects to the requirements set forth in the invitation for bids...." OCGA § 36-91-2(12) (Emphasis supplied). The reference to "material respects" must be honored. Similarly, the provision of OCGA § 36-91-20(c) that governments "have the authority to reject any and all bids or proposals and to waive technicalities and informalities," must be given effect; to read OCGA § 36-91-21(b)(4) to mean that all terms stated in the invitation for bids must be met precisely would curtail the authority governmental entities are specifically given.
It is not the case that every provision in an invitation for bids must be strictly followed; a governmental entity retains its statutorily granted power to waive technicalities. See Letchas v. Sims Asphalt Co., 250 Ga.App. 179, 180-181, 550 S.E.2d 721 (2001). Rather, the key to giving effect to each of the three relevant Code sections is OCGA § 36-91-2(12)'s definition of a "[r]esponsive bidder" as one whose bid conforms to...
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