R & R Ground Maintenance Inc. v. Alabama Power Company

713 F. App'x 853
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 30, 2017
Docket16-16788 Non-Argument Calendar
StatusUnpublished

This text of 713 F. App'x 853 (R & R Ground Maintenance Inc. v. Alabama Power Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R & R Ground Maintenance Inc. v. Alabama Power Company, 713 F. App'x 853 (11th Cir. 2017).

Opinion

PER CURIAM:

R&R Ground Maintenance, Inc. (“R&R”) appeals the grant of summary judgment on its claims of racial discrimination against Alabama Power Company (“APCo”), Southern Company, and Robert G. Garrison.

I.

A.

Southern Company is an electric utility holding company. It has no employees, but has several subsidiaries, including APCo. APCo is a utility company that provides electricity to 1.4 million customers in Alabama.

Garrison is an employee of Southern Company Services, Inc. (“SCS”), which is another subsidiary of Southern Company. He is a manager in the group that handles the bidding on contracts for maintenance services at APCo’s plants.

Earnest and Patricia Rayford are the African-American owners of R&R. They founded the company in 1986, offering cleaning services. In 2006 they began offering lawn and maintenance services as well. R&R twice was awarded janitorial contracts at APCo’s Greene County Electric Generating Plant in Demopo'lis, Alabama.

When APCo decides to seek bids for contract services, an APCo or SCS manager will assemble a list of potential contractors by working with APCo’s diversity program. The manager also assembles a contract package that includes specifications and conditions for the contract, a proposal form, and instructions for submitting the proposal.

The instructions in all bid packages include a warning that proposals must be submitted on time in order to be considered. The form states “IMPORTANT: If, for whatever reason, your proposal is not loaded into the Southern Company Sourcing web site by the due date and time, and you have not faxed your proposal as herein instructed, your proposal will not be considered.”

Though not stated in the instructions, it was APCo’s practice to allow bidders to submit documents other than proposal forms—such as compliance forms, schedules, and licenses—after the bid due date. The proposal forms contained the essential pricing information that allowed a manager to tabulate the winning bid.

The instructions presumed that the submissions would be made online, but never mandated that practice. Instead, the instructions state that “[ajfter submission of your proposal through the Southern Company Sourcing web site, but before the bid due date, a copy of the proposal should be faxed.”

Submitting bids online, through SCS’s vendor Emptoris, was the preferred submission method. The Emptoris web site allows contractors to access APCo bid packages. Contractors can then upload documents to the site, including proposals and any supporting documents. Once that documentation is ready, the contractor must click “submit Draft Bid” to finalize the submission. When Emptoris is functioning normally, APCo could not access documents uploaded to Emptoris by contractors until they clicked the button to submit a draft bid. After this suit was filed, APCo discovered a glitch in Emptor-is that allowed it to access draft bids documents. The documents were accessible in a portion of the website that was not typically used when reviewing bids, and APCo was unaware of this function at the time the bids at issue here were submitted. APCo also accepted bids through fax, mail, and hand delivery, but not by email.

Once the bid deadline had passed, an APCo or SCS manager would tabulate the overall price of each bid. This tabulation would vary depending on whether the proposal includes fixed price work or unit pricing, as well as other costs. Once the .prices were tabulated, managers at the APCo plant would make a final decision on which supplier would be awarded the contract.

B.

In August 2013 the Greene County plant decided to solicit bids for a landscape-maintenance contract. The maintenance work at the plant had been performed by DKH, LLC, which is not a minority-owned business. DKH had performed this work since 1997, except for a brief period in 2004 during which APCo hired another firm, but then quickly returned to DKH as its preferred contractor. APCo managers asserted that DKH generally performed good work and was available on short notice. Nonetheless APCo wanted to solicit bids since the overall cost of the contract was high.

APCo solicited bids for the Greene County plant from four contractors, including R&R and DKH. While R&R had not previously performed landscaping or lawn-care work, it had been awarded the janitorial contract at the plant from 2006 through 2012.

The bid inquiry package described a three-year contract for landscape maintenance and general plant-cleaning work. In addition to the typical bid instructions, the package stated that “Contractor shall furnish with its Proposal evidence that it possesses all appropriate licenses required for application of pesticides, insecticides, herbicides and rodenticides, as well as any other applicable licenses required by the state related to landscaping services hereunder.” The chemical-spraying tasks had not been included in previous maintenance contracts at the Greene County plant. The bid due date was October 11, 2013 at 11:00 AM.

On October 3, 2013, Garrison conducted a pre-bid meeting for the Greene County contract. He told the contractors they had to determine for themselves which licenses and permits they’d need for the work. He .also stated that they “just need the pricing portion of the proposal form and those compliance forms. You got other things you need to attach to that, that’s fine. You can get that to us later. We’ll be glad to take that afterwards, but we do have to have the pricing and the, the pricing portion before [ ] 11:00.”

Two days before the bid deadline, DKH submitted its proposal via fax. The proposal did not include any licensing information, and at the time DKH did not possess the appropriate licenses. R&R submitted a timely bid through Emptoris, complete with licenses.

DKH’s proposal for firm price work was significantly lower than R&R’s, though R&R proposed lower hourly rates. Garrison tabulated .the overall bid prices by looking only at the firm price work because hourly work “was not expected to be a large part of the contract.” For that reason he reported to plant management that DKH was the lowest bid.

However, APCo would not award a contract unless the contractor had proper licenses. APCo waited nearly a month for DKH to acquire those licenses before awarding it the contract.

C.

In November 2013, APCo solicited bids for a landscape-maintenance contract covering. three power plants: E.C. Gaston, Gorgas, and Miller (collectively “GGM”). APCo hoped to reap the economic benefit of bundling the contract for the three plants, but retained the right to award the work at each plant to different contractors.

Again, R&R was one of four contractors whom APCo solicited for bids. The due date for the bid was November 6, 2013 at 11:00 AM. On November 5, Landcrafters, Inc., a woman-owned small business that had previously performed landscaping maintenance on the expiring GGM contract, submitted a bid through Emptoris.

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Bluebook (online)
713 F. App'x 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-r-ground-maintenance-inc-v-alabama-power-company-ca11-2017.