S.J. Groves & Sons Co. v. Fulton County
| Decision Date | 07 January 1991 |
| Docket Number | 88-8573 and 88-8700,Nos. 86-8105,88-8536,s. 86-8105 |
| Citation | 920 F.2d 752 |
| Parties | 55 Empl. Prac. Dec. P 40,564 S.J. GROVES & SONS COMPANY and Jasper Construction Company, Plaintiffs-Appellees, v. FULTON COUNTY, Defendant-Appellant, U.S. Department of Transportation, Defendant. S.J. GROVES & SONS COMPANY and Jasper Construction Company, Plaintiffs-Appellees, v. FULTON COUNTY, Defendant-Cross-Claim Plaintiff-Appellant. S.J. GROVES COMPANY and Jasper Construction Company, Plaintiffs-Appellees, v. FULTON COUNTY, Defendant-Cross-Claim Plaintiff-Appellant, United States Department of Transportation and James H. Burnley, IV, Secretary, United States Department of Transportation, Defendant-Cross-Claim Defendants-Appellees. S.J. GROVES & SONS COMPANY and Jasper Construction Co., Inc., Plaintiffs-Appellees, v. FULTON COUNTY, Defendant-Appellant, United States Department of Transportation, James H. Burnley, IV, Secretary, United States Department of Transportation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Keith Weiner, Webb & Daniel, Atlanta, Ga., for Fulton County.
Terrence Lee Croft, Peter A. Wade, W. Henry Parkman, C. Wilson DuBose, Griffin, Cochrane, Marshall & Elger, Atlanta, Ga., for S.J. Groves & Sons, Jasper Const. Co.
William O. Miller, G. Stephen Parker, Robert B. Baker, Jr., Southeastern Legal Foundation, Inc., Atlanta, Ga., for amicus Southeastern Legal Foundation, Inc.
Mark L. Gross, Dept. of Justice, Civil Rights Div., Washington, D.C., for U.S. Dept. of Transp.
Appeals from the United States District Court for the Northern District of Georgia.
Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.
I. FACTS AND PROCEDURE
The Federal Aviation Administration (FAA) of the Department of Transportation (DOT) has designated Fulton County Airport (also known as Brown Field) a "reliever" airport. This means that it is an alternative destination for freight and cargo flights away from the primary passenger airport in the area, Hartsfield International Airport. In 1981, the FAA determined that the instrumented runway at Fulton County Airport was in "rapidly deteriorating condition." District Court Order, Sept. 30, 1985, R.6-103-2. The FAA threatened to close the runway, which would have resulted in the airport losing its status as a reliever airport. Id.
In order to avoid this result, the Fulton County Board of Commissioners decided that the runway should be repaired. The County applied for a grant from the FAA under the Airport and Airway Development Act of 1970, as amended (AADA). Under a program created by that statute, the federal government would fund ninety percent of the project, the state of Georgia would fund five percent, and Fulton County would fund five percent. As a condition of receiving the grant, Fulton County was required to develop and submit for approval to the FAA an MBE (Minority Business Enterprise) 1 program for the project. The program had to meet the requirements set forth in regulations promulgated by the Department of Transportation (the DOT regulations). These regulations are set out at 49 C.F.R. Sec. 23.1--23.55.
Fulton County developed an MBE program (the specifics of the program are discussed in Part III of this opinion), and the FAA approved it and awarded the funds to the County. Once the funds were received, the County invited bids from contractors. S.J. Groves & Sons, Co. (Groves) 2 submitted a timely bid of $818,432.40, the lowest bid the County received. The Groves bid included MBE participation of 4.15%. 3 The County Commission awarded the contract to Groves, on condition that it make a good faith effort to increase the level of its proposed MBE participation. The extent of Groves's good faith efforts to increase MBE participation is disputed. The County Commission decided Groves had not in good faith attempted to increase MBE participation and awarded the contract to the second-lowest bidder, Dickerson, Inc., whose bid contained an MBE participation level of 10%. The award was again conditioned on good faith efforts to increase MBE participation. Dickerson was able to increase MBE participation to 16% within two days. The Commission then permanently awarded the contract to Dickerson.
The protracted procedural history of this case began in August 1982 when Groves, after an unsuccessful attempt to obtain equitable relief, filed a complaint against Fulton County in the district court for the Northern District of Georgia. Subject matter jurisdiction was grounded in diversity.
Subsequently, the district court permitted Groves to file five amended complaints. Groves alleges the following: Count I--Fulton County breached its promise as contained in the invitation to bid by not awarding the contract to the lowest bidder; Count II--Fulton County had no authority to promulgate the MBE program because it conflicts with the Georgia low-bid statute, and the MBE program is therefore invalid; Count III--the MBE program is unconstitutional under the Georgia Constitution; Count IV--the MBE program violates Title VI of the Civil Rights Act of 1964; Count V--the MBE program violates the equal protection component of the Fourteenth Amendment of the federal Constitution; Count VI--Fulton County's 1984 MBE resolution, 4 on its face, violates the equal protection component of the Fourteenth Amendment; Count VII--the 1984 MBE Resolution, on its face, violates the Georgia low-bid statute; Count VIII--the 1984 MBE Resolution, on its face, violates Title VI. 5 Counts IX and X--the DOT regulations violate, inter alia, the equal protection component of the Fifth Amendment of the federal Constitution. 6 Groves seeks damages on Counts I through V and equitable relief on Counts VI through X.
The district court, over the course of several years, 7 issued three separate orders in this case. Each order resulted from cross-motions for summary judgment. These orders are now before us on interlocutory appeal. Following is a brief summary of the district court's resolution of each count. More detailed discussion of the district court's findings and orders will accompany our discussion of the issues.
First, the district court denied summary judgment on Count I because Groves's good faith efforts to meet the MBE requirements on the airport project contract are disputed. Second, the court granted summary judgment in favor of Groves on Counts VI through VIII because the court found that "the actions of Fulton County in enacting the airport program and the 1984 [MBE] Resolution violate Georgia's low-bid statute." District Court Order, Sept. 30, 1985, R. 6-103-24. The County was enjoined from enforcing the 1984 Resolution. Next, the court held the DOT regulations violate the equal protection component of the Fifth Amendment and are therefore unconstitutional. Therefore, summary judgment was entered in favor of Groves on Counts IX and X. 8 Finally, the district court granted summary judgment for Groves on Counts II, IV and V. Because the DOT regulations are unconstitutional, the court ruled, they cannot preempt the Georgia low-bid statute. Further, Fulton County had no other defense to its violation of the state statute, and the court consequently held the County liable to Groves. 9
II. PARTIES' CONTENTIONS AND ISSUES ON APPEAL
Essentially, Groves complains of two things Fulton County has done. First, Groves claims the County's 1984 MBE Resolution is not authorized by state or federal law and puts Groves at a disadvantage in bidding on Fulton County public works projects. Therefore, the injunction preventing enforcement of the resolution should be affirmed. Second, Groves claims it should have been awarded the airport paving contract pursuant to the Georgia low-bid statute. Fulton County awarded the contract to another bidder, Groves asserts, based on an unconstitutional MBE program that the County had no authority to enact.
Fulton County argues that Groves lacks standing to challenge the 1984 Resolution and that regardless, the resolution is constitutional. The County further contends that it is authorized by the low-bid statute to take compliance with MBE requirements into account in awarding contracts. Finally, the County asserts that even if it did violate the low-bid statute, it has a valid defense that prohibits a finding of liability to Groves.
We are called upon in this appeal to resolve the following issues. First, does Groves have standing to challenge the County's 1984 MBE Resolution, and if it does, is the resolution constitutional. Second, in awarding the 1982 airport project contract to a bidder other than Groves, did the County violate the Georgia low-bid statute. Finally, if the County did transgress state law, does it have a valid defense to the violation.
III. DISCUSSION
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
In 1979, Fulton County enacted a resolution that called for a goal of twenty percent participation by MBEs in all county contracts (the 1979 MBE Resolution). The County Commission decided to update the resolution and directed Clarence Reid, the County's affirmative action officer, to conduct a study of MBE participation in Fulton County contracts. After conducting personal meetings, compiling data and reviewing similar programs instituted by other local governments, as well as by the Metro Atlanta Rapid Transit Authority, the Reid study concluded that MBE participation in County contracts was disproportionately low. The cause of the problem, according to the study, was systemic racial discrimination.
In 1984, the County Commission ordered the County Manager to develop an MBE program to...
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