State ex rel. Page v. Reorganized School Dist. R-VI of Christian County

• Decision Date: 04 January 1989
• Docket Number: No. 15501,R-VI,15501
• Citation: 765 S.W.2d 317
• Parties: 52 Ed. Law Rep. 415 STATE of Missouri, ex rel. Dean PAGE, Relator-Appellant, and Killian Construction Company and Dean Page, Plaintiffs-Appellants, v. REORGANIZED SCHOOL DISTRICTOF CHRISTIAN COUNTY, Missouri, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 317

765 S.W.2d 317

52 Ed. Law Rep. 415

STATE of Missouri, ex rel. Dean PAGE, Relator-Appellant and Killian Construction Company and Dean Page, Plaintiffs-Appellants, v. REORGANIZED SCHOOL DISTRICT R-VI OF CHRISTIAN COUNTY Missouri, et al., Defendants-Respondents.

No. 15501.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 4, 1989.

Motion for Rehearing or Transfer

Denied and Overruled Feb. 1, 1989.

Application to Transfer Denied March 14, 1989.

Donald W. Jones, Hulston, Jones & Sullivan, Springfield, for plaintiffs-appellants.

John W. Sims, Haymes, Sims & Thompson, Marshfield, Lincoln J. Knauer, Farrington & Curtis, Springfield, James L. Eiffert, Ozark, Clyde R. Allemann, Dickey, Allemann, Chaney & McCurry, Springfield, for defendants-respondents.

MAUS, Judge.

In the two actions which are the subject of this appeal, an unsuccessful low bidder and a taxpayer contend that a school board acted illegally in not awarding a construction contract to the low bidder. They seek relief by mandamus, injunction and declaratory judgment. The circuit court found the action of the school board was not illegal and denied relief. The unsuccessful low bidder and the taxpayer appeal.

The transcript of the evidence in this court tried case is voluminous. The thrust of much of that evidence was to establish the appellant low bidder (Killian Construction Company hereafter called Killian) was a "responsible bidder" within the meaning of § 177.086. It is conceded Killian is so qualified. Further, much of the testimony was elicited by argumentative questions predicated upon an erroneous construction of § 177.086. This concession and the established construction of § 177.086 cause it to be unnecessary to even summarize much of the evidence. The following is an outline of the basic controlling facts.

Reorganized School District R-VI of Christian County advertised for bids for the construction of a new elementary school. The plans and specifications for that construction called for completion by December 20, 1988. Six bids were received. The bid of Killian was for $2,124,000. The bid of Crawford Construction Company, a partnership, (hereafter referred to as Crawford) was for $2,148,000. The other four bids ranged from $2,172,000 to $2,440,000.

The bids were opened on August 20, 1987. Following the bid opening, representatives of the two low bidders, Killian and Crawford, were asked to tell the board a little about their respective companies. They did so. They were specifically asked about their experience in school construction. The representative of Killian said the company had done a renovation at Springfield Central High School. Don Crawford related the names of six or seven districts for which Crawford had constructed school buildings. The president of the board then appointed a committee of two board members, architect Ball, and the superintendent of schools to interview the two low bidders privately and separately.

The representative of Killian was first interviewed. He was asked questions concerning Killian's bid. The questions included inquiries concerning subcontractors and materials. He was also asked if Killian was comfortable with the completion date. Killian's representative replied that the company could complete the project two months earlier. The representative of Crawford was asked similar questions. He responded that Crawford could complete the project by September 1, 1988. He was then asked if the company would sign a contract that provided penalties for late performance for completion by September 1, 1988. He responded that Crawford would sign such a contract. The committee The board then reconvened in open meeting. In response to a question by the president of the board, the superintendent of schools recommended the award of the contract to Crawford. By a unanimous vote the board awarded the contract to Crawford.

then discussed the interviews. The architect recommended an award to Crawford.

Three board members testified at trial. Excerpts from the depositions of the three other board members were received in evidence. Four board members were asked the reasons why they awarded the contract to Crawford. Their answers included the following. The greater experience in school construction of Crawford. The recommendation of the superintendent of schools. The earlier completion date. The superior presentation made by the representative of Crawford and his ability to answer questions of the board. One board member testified that Killian's representative seemed indifferent. Two members of the board were unaware of the early completion date of September 1, 1988.

Don Crawford and the architect had been on a fishing trip together. None of the board members or the superintendent of schools had any acquaintance or association with Crawford. There was evidence it was not unusual for the contracting authority to conduct post bidding interviews with two or more low bidders. On one bid letting for the construction of a church where Ball was architect, Killian was awarded the contract as second low bidder. Page testified that except for not letting the contract to Killian, he had no knowledge the board was corrupt, capricious or fraudulent.

Subsequent to the bid letting, Killian offered to complete the project by September 1, 1988. This offer was refused. That refusal was promptly followed by the institution of the actions which are the subject of this appeal. The first action is in mandamus. The relator in that action is Dean Page. Page is an employee of Killian. It was probable he would have been job superintendent for the Ozark School. He resides in and is a taxpayer of the school district. His legal fees are being paid by the Springfield Contractors Association. In the mandamus action, the relator prays that the contract with Crawford be cancelled and the board directed to award the contract to Killian.

Killian and Page are plaintiffs in the second action which is in three counts. By count I Killian and Page pray for various forms of injunctive relief. By count II they seek a declaration that the award of the contract to Crawford was illegal and that the board must award the contract to Killian. By count III Killian seeks damages for malicious interference with contract against Crawford and project architect Ball. Count III was severed. As a result of commendable cooperation by the attorneys involved, the mandamus action and counts I and II were consolidated and tried on September 24 and 25, 1987. Also with commendable dispatch, the circuit court promptly rendered its decision.

In rendering that decision, the circuit court dictated into the record findings of fact and conclusions of law. Its fundamental conclusions were "that the school board can reject any and all bids, that they do have discretion with these bids. The second conclusion of law would be that the rejection of a bid or the rejection of this bid in this case was not arbitrary of [sic] capricious or unlawful." It repeated the conclusion that the rejection of the bid of Killian "was not unreasonable or for an improper motive and was not an abuse of their discretion." The circuit court then entered judgment denying the appellants relief in mandamus and upon counts I and II of the petition in the second action. That judgment was declared to be final for the purpose of appeal.

The appellants state four points on appeal. Two of those points rest upon their basic contention the Board was required to award the contract to the low bidder unless that bidder was not a "responsible bidder." They acknowledge cases denying relief to a low bidder, such as Metcalf & Eddy Services, Inc. v. City of St. Charles, 701 S.W.2d 497 (Mo.App.1985). However, they seek to If the contract with the General Electric X-Ray Corporation was not entered into in good faith, the law affords taxpayers a complete remedy for its cancellation, but private individuals, as unsuccessful bidders, cannot maintain a suit in their own behalf to cancel the award as made and compel the awarding of the contractor to them.

avoid the authority of such cases because the relator and one of the plaintiffs in these actions is a taxpayer. To support this proposition, they cite dictum concerning a taxpayer's action in La Mar Construction Co. v. Holt County, R-II School District, 542 S.W.2d 568 (Mo.App.1976). See Pace Construction v. Mo. Highway & Transportation Com'n, 759 S.W.2d 272 (Mo.App.1988). They support that dictum by the following statement from State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W.2d 677 (banc 1936):

Id. 98 S.W.2d at 681 (emphasis added). That statement does not support the dictum relied upon by the appellants. In fact, it declares that a taxpayer can attack such a contract only if it is not entered into in good faith.

Also they cite cases from other jurisdictions such as Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084 (6th Cir.1981); Fetters v. Mayor & Council of Wilmington, 31 Del.Ch. 338, 73 A.2d 644 (1950); Gerard Construction Co., Inc. v. City of Manchester, 120 N.H. 391, 415 A.2d 1137 (1980); R. & B. Builders, Inc. v. School District of Philadelphia, 415 Pa. 50, 202 A.2d 82 (1964). Those cases do not establish their contention. They do not construe and apply a statute that grants the public body the right to reject any and all bids. The significance of this proviso in § 177.086 is emphasized in cases such as Owen of Georgia and Fetters. In those cases that proviso was contained only in the advertisement for bids. In commenting on that proviso, the courts have observed: "Whatever effect the nonstatutory quoted language may have, it is at once apparent that it cannot be employed so as to abrogate the provision of the statute requiring the work to be let to the 'lowest and best bidder.' " Fetters, 73 A.2d at 647 (emphasis added). "The Act, not the bid advertisement, constitutes the law controlling the award of the contract." Owen of Georgia, ...