State ex rel. Stricker v. Hanson, WD

• Citation: 858 S.W.2d 771
• Decision Date: 13 July 1993
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, ex rel. Wes STRICKER, M.D., and Ozark Management, Inc., Appellants, v. Richard HANSON and Office of Administration, Respondents. 47202.
• Court: Court of Appeal of Missouri (US)

Page 771

858 S.W.2d 771

STATE of Missouri, ex rel. Wes STRICKER, M.D., and Ozark

Management, Inc., Appellants, v. Richard HANSON and Office of Administration, Respondents.

No. WD 47202.

Missouri Court of Appeals,

Western District.

July 13, 1993.

Terry C. Allen, Thomas W. Rhyne, Craft Fridkin & Rhyne, Jefferson City, for appellants.

Melody A. Emmert, Jefferson City, for respondents.

Before LOWENSTEIN, C.J., and BERREY and ULRICH, JJ.

ULRICH, Judge.

William E. "Wes" Stricker, M.D., and Ozark Management, Inc., ("Appellants") appeal the grant of summary judgment entered by the Cole County Circuit Court in favor of James R. Moody, Commissioner of Administration, ¹ and the Office of Administration ("Respondents"). This appeal concerns the award of a public contract by Respondents for a helicopter lease. Appellants contend that the trial court erred in quashing its preliminary writ of mandamus and in denying Appellants' request for injunctive relief because "as a matter of law, the award of the public contract to Helicopters, Inc. was unlawful, thereby rendering the contract void." The judgment of the trial court is reversed, and the cause is remanded with directions that the trial court enjoin Respondents from utilizing the services of Helicopters, Inc., as provided in the contested contract.

In the spring of 1992, staff members of the Missouri Department of Conservation advised Respondents that they wanted to lease helicopter services. In early April of 1992, Respondents received a Purchase Requisition from the Department of Conservation describing the general lease terms desired and the technical specifications the helicopter needed to meet. The requisition stated on the first page, "Aircraft to be a Bell Jet Ranger, Model 206B." With respect to the identification of the helicopter to be provided under the contract, the requisition stated:

General

Bidder to provide the following information about helicopter being offered:

a. Make ___________________________________________________________________

b. Model __________________________________________________________________

c. Year ___________________________________________________________________

d. Hull Value $_______________ (to determine insurance requirements)

The requisition also contained limitations on the number of hours allowed on the engine since overhaul and on the airframe and required that no normal major helicopter component changes could be due during the lease period.

An Invitation for Bid (IFB) was prepared by Respondents and disseminated to nine potential bidders. The Technical Specifications section of the IFB (Part IV) stated in part that "[t]he helicopter must be a four-place turbine-powered unit, either a Bell Jet Ranger 206B, as per the specifications listed below." However, the IFB incorporated the standard State of Missouri Terms and Conditions of an Invitation for Bid. One condition provided that "[a]ny manufacturer's names, trade names, brand names, information and/or catalogue numbers listed in a specification are for informational purposes only and ... [t]he bidder may offer any brand which meets or exceeds the specification of any item." Thus, the technical specifications detailed in the IFB could have been met by a number of helicopters including a Bell Jet Ranger 206B II, a Bell Jet Ranger 206B III, and helicopters manufactured by companies other than Bell.

The only place in the IFB for identification of the helicopter proposed to be provided under the lease was included in the Special Instructions to Bidders (Part III). The paragraph under which this information was to be provided was entitled "Insurance:"

8. Insurance:

8.1 The State of Missouri will provide Hull Insurance. Complete the following information for the helicopter offered for lease:

Make: __________________________________

Model: _________________________________

Year: __________________________________

Serial Number: _________________________

Hull Value: $___________________________

The IFB contained the same limitations on hours and component part changes as the requisition and requested that the bidders designate a cost per hour for the first 300 hours of service as well as an hourly cost for each hour in excess of 300 hours.

As to the process to be followed in awarding the contract, the IFB provided:

The bidder must respond to this IFB by submitting all data required herein in order for his/her response to be evaluated and considered for award.

* * * * * *

The bidder should present in detail all products and services proposed in this response to this invitation. It is the bidder's responsibility to make sure all products proposed are adequately described.

* * * * * *

Any contract resulting from this request shall be awarded to the bidder's response providing the lowest and best bid to the State of Missouri.

In addition to providing that the bidder may offer any brand of helicopter which met or exceeded the specifications, the State of Missouri Terms and Conditions of an Invitation for Bid attached to the IFB provided:

* * * * * *

A bid may be modified or withdrawn by written notice received prior to the official closing date and time specified.... Verbal phone requests to withdraw or modify a bid will not be considered.

* * * * * *

After the official closing date and time, no bid may be modified or withdrawn.

* * * * * *

As the best interest of the State may require, the right is reserved ... to reject any and all bids or waive any minor irregularity or technicality in bids received.

* * * * * *

Awards will be made to the bidder whose bid (1) meets the specifications and all other requirements of the IFB and (2) is the lowest and best bid, considering price, responsibility of the bidder and all other relevant factors.

In accordance with the IFB, the bidding process was closed on May 5, 1992, at 2:00 p.m. Four bids were received by Respondents before the official closing time, including two proposals from Appellants and one from Helicopters, Inc. ² One of the bids from Appellants stated in response to the paragraph on insurance that Appellants would provide a 1979 Bell Jet Ranger 206B III, serial number 2875, having a hull value of $595,000. In their second bid, Appellants offered to provide a 1978 "McDonald [sic] Douglas" Hughes 500D, serial number 500-273 (N345), having a hull value of $595,000. Appellants also included as part of their bid package on the Bell Jet Ranger 206B III information on the number of hours on the engine and the airframe and the type of equipment contained on the helicopter beyond that required by the IFB.

Helicopters, Inc., responded to the paragraph of the IFB requesting information on the helicopter for insurance purposes by stating, "To be determined. Helicopters, Inc. has not determined which aircraft by serial number will be placed on the contract. The helicopter provided will meet or exceed all specifications as outlined in Part IV, technical specifications." In response to another section of the IFB, Helicopters, Inc., certified that all of its mechanics were "Bell Factory trained" and stated that the hull value of the helicopter offered would be $375,000. As for the aircraft hour and component part change limitations, Helicopters, Inc., agreed "Aircraft to be provided will not have any major component changes due. Aircraft will have less than 1000 hours total time on engine since overhaul." Helicopters, Inc., also stated it carried $25 million in aircraft insurance and directed Respondents' attention to a certificate of insurance it provided showing the liability insurance coverage it maintained on its aircraft. The certificate listed nineteen aircraft, including several Bell 206B IIs and 206B IIIs.

Helicopters, Inc., offered the lowest price of the four bids submitted in its response to the IFB. ³ Sometime after the official closing time for the receipt of bids and the subsequent bid opening, a Department of Conservation staff member contacted Respondents' purchasing manager and asked him to confirm that Helicopters, Inc., would supply a helicopter meeting the technical specifications of the IFB. On or about May 13, 1992, the purchasing manager called Helicopters, Inc., and told its chief pilot that Helicopters, Inc., needed to designate the model number of the aircraft it was offering and that the helicopter would have to meet the technical specifications of the IFB.

Following the telephone call, the purchasing manager received a letter dated May 13, 1992, from the chief pilot of Helicopters, Inc., which provided in part:

As a result of our conversation today, we have several questions with regards to the change in the specifications.

What was the justification for changing the requirement from a BII or BIII to a BIII?

Under what authority can a bid that has already been let be changed?

What are the ramifications, if we provide BII, i.e., will the contract be rebid?

Can an alternate pad be provided or does it have to be that specific model number?

Helicopters Inc. intends to meet the specifications as stated in Part IV. If required to preclude a rebid we will provide a 206BIII with the specifications as listed. It would of course be to our benefit to furnish a BII if acceptable.... Additionally, is the commission meeting next week to review the bids open to the public and if so where and when is it to be held.

As he later stated in a sworn affidavit, the purchasing manager did not consider this letter to be responsive to his inquiry. Upon receipt of the letter, the purchasing manager called Stephen C. Leiber, president and owner of Helicopters, Inc., and told him that he needed to advise Respondents, in writing, of the model of the helicopter to be provided in response to the IFB. On May 15, 1992, the purchasing manager received a facsimile transmission from Mr. Leiber advising Respondents that Helicopters, Inc., would provide a Bell Jet Ranger 206B III and that the serial number would...