O. J. Photo Supply, Inc. v. McNary

611 S.W.2d 246, 1980 Mo. App. LEXIS 2892
CourtMissouri Court of Appeals
DecidedNovember 25, 1980
DocketNo. 41483
StatusPublished
Cited by5 cases

This text of 611 S.W.2d 246 (O. J. Photo Supply, Inc. v. McNary) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O. J. Photo Supply, Inc. v. McNary, 611 S.W.2d 246, 1980 Mo. App. LEXIS 2892 (Mo. Ct. App. 1980).

Opinion

STEWART, Presiding Judge.

Action for injunctive and declaratory relief brought by O. J. Photo Supply, Inc., an unsuccessful bidder for a contract with St. Louis County. The defendants are W. Schiller and Company, the successful bidder, Gene McNary, the Supervisor of St. Louis County, John Lucks, its Director of Administration, and Bruce Kendrick, the Director of the Division of Purchasing. We shall refer to O. J. Photo Supply, Inc., as plaintiff. The members of the executive departments of St. Louis County, who have been sued, will be referred to as the County and W. Schiller and Company will be referred to as Schiller. We will refer to defendants collectively as defendants. We affirm.

[247]*247Plaintiff contends that the court erred in dismissing its petition for injunctive relief because there was no adequate remedy at law and because the injunction would serve to protect the public interest. The conclusion that we reach makes it unnecessary to discuss this issue. We face the single issue of whether it was proper for St. Louis County to consider a discount as a factor in the evaluation of the bids to determine the lowest bidder.

On October 9, 1978 the County issued an invitation for bid for photographic supplies for its various departments. The items the County desired to purchase were broken down into nine groups. The invitation to bid along with other terms and conditions contained the following provisions:

“The price or prices specified in this quotation are firm and are not subject to contingence or reservation.”
“V. BID AWARD
The bid is to be awarded to one, total low bidder; or multiple bidders (not to exceed two); whichever is more advantageous to the County. St. Louis County reserves the right to not award any contract item.
VI. EVALUATION METHOD
The award is to be based on lowest total bid for estimated annual usage, by group, firm pricing, and past performance.”
“DISCOUNTS AND BID EVALUATION
Discounts offered for prompt payment will be considered in bid evaluation.”

Bids were submitted by Schiller, VWR Scientific, Inc. and plaintiff. In submitting the bids Schiller offered a 2% discount if payment was made on or before the twentieth day from the date of delivery. VWR Scientific, Inc. offered a 1% discount if payment was made within ten days of delivery. Plaintiff offered no discount.

The County analyzed the bids to determine the lowest responsible bidder. In its analysis it took into consideration the discounts offered by Schiller and VWR Scientific, Inc. and awarded Groups I, III, IV and VI to Schiller and Groups II, V, VII, VIII and IX to plaintiff.

Plaintiff centers its attack upon Group I where the bids of plaintiff and Schiller were as follows:

Pre-discount $ 78,522.86 $ 79,038.00
Post-discount 78,522.86 77,457.24

There is no question but that all bidders were responsible. The bid of Schiller was determined to be the lowest bid because the County took the discount into consideration in determining who had the lowest bid.

Plaintiff was aware that the County had a policy of considering discounts in the evaluation of bids for goods and services. In the year before plaintiff had been awarded a contract based on a bid in which it offered a discount of 1% if payment was made within ten days. Plaintiff’s invoices in that year did not contain a statement of the terms of payment and no discounts were taken. Discounts were taken by the County with respect to other suppliers as evidenced by County’s exhibits. The invoices of other suppliers contained the terms of payment which included the discount. Plaintiff testified that it did not offer a discount in its bid with respect to the contract let to Schiller because the County had not taken advantage of the discount in the previous year and it was too much trouble for plaintiff to monitor the invoices to determine whether payments were timely.

County publishes a pamphlet that had been available to the public for some four years entitled Purchasing Procedures.1 Among other items it contains the following:

“DISCOUNTS
Unless otherwise designated in the specifications, a discount for prompt payment of invoice will be considered in the evaluation of bids to determine the lowest responsible bidder.”
“PAYMENT OF INVOICES
The Department of Administration has set up several rules governing the pay[248]*248ment of invoices. No invoice will be honored for payment until notice has been received in the Accounting Division that the goods or services have been received and that they have been inspected and found to be as ordered and that the payments are in accordance with Purchasing, Budget, and the appropriate operating Department’s policies and procedures. It is County policy that invoices will be paid in time to take advantage of discount terms offered by the vendor.”

Before considering the principal issue we take note of the fact that in the argument portion of the brief plaintiff attacks the award of the contract on the ground that the granting of a discount violates the “firm pricing” provisions of the invitation to bid. We cannot read this issue into the point relied on. It is also apparent that defendants did not read the point as raising that issue because they do not address that issue in their brief. Issues raised for the first time in the argument will not be considered by the court. Rule 84.04(d); Sebree v. Rosen, 374 S.W.2d 132, 141 (Mo.1964).

We will comment, however, that in taking the discount the vendor is not changing the price on the individual items bid upon by it. The discount has no bearing on the price of the materials or services rendered by a bidder. To hold otherwise would mean that terms of payment could not be made a part of governmental contracts.

Plaintiff’s principal point relied on is that the court erred in declaring that it was proper to consider the discount factor because County had not taken the discount offered by it in the 1977-1978 contract with plaintiff and because it was violative of the statutory mandate that contracts be awarded to the lowest responsible bidder. The issue presented is one of first impression.

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Bluebook (online)
611 S.W.2d 246, 1980 Mo. App. LEXIS 2892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/o-j-photo-supply-inc-v-mcnary-moctapp-1980.