Ray Bell Construction Co. v. School District

478 S.E.2d 67, 324 S.C. 320, 1996 S.C. App. LEXIS 142

• Court: Court of Appeals of South Carolina
• Decided: October 7, 1996
• Docket: No. 2571
• Status: Published

Opinions

GOOLSBY, Judge:

This case involves a protest by Ray Bell Construction Company (Ray Bell) of the award of a construction contract to M.B. Kahn Construction Company (Kahn) by the Greenville County School District (the school district). The master-inequity, acting by stipulation of the parties as the administrative review body, affirmed the decision to award the contract to Kahn. Ray Bell sought judicial review of the master’s order and the circuit court affirmed. Ray Bell appeals. We affirm.

BACKGROUND

In June, 1994, the school district issued its invitation for bids for the construction of the new Greer/Riverside High School. The school district’s standard bid form required each general contractor to set forth the names of the subcontractors for each specific portion of the work. The invitation for bids provided that “[i]f the bidder determines to use his own employees to perform any portion of the work for which he would otherwise be required to list a subcontractor, and if the bidder is qualified to perform such work,” the bidder could list himself in the appropriate place on the bid form. The bid form also stated that a “[fjailure to list subcontracts [sic] in accordance with the code shall render the prime contractor’s bid unresponsive.”

The school district received bids on the project from Ray Bell, Kahn, and Ellis-Don Construction, Inc. Kahn’s bid of $18,822,000 was the low bid and Ray Bell’s bid of $19,062,000 was the next lowest. At the bid opening, Ray Bell questioned the responsiveness of Kahn’s bid because it identified more than one subcontractor and included alternative listings of subcontractors for certain specific portions of the work.

The director of facilities for the school district made an inquiry to Kahn about the questions raised by Ray Bell. By letter dated September 15, 1994, Kahn responded to the inquiry. The school district then issued a notice of intent to award the contract to Kahn. Ray Bell filed a protest with the purchasing agent for the school district pursuant to the school district’s procurement code. The purchasing agent denied Ray Bell’s protest and Ray Bell appealed the denial. On October 20, 1994, the master-in-equity held an administrative review of the purchasing agent’s decision.¹ The master determined the purchasing agent acted within his authority and discretion in awarding the contract to Kahn and in denying Ray Bell’s protest.

Ray Bell petitioned the circuit court for judicial review of the master’s order. Ray Bell argued Kahn’s bid was unresponsive because it listed alternative subcontractors and therefore did not conform with either the requirements of the invitation for bids or S.C.Code Ann. § 11 — 35—3020(2)(b) (Supp. 1995). Based on its interpretation of the language of the statute, the circuit court, in a well-reasoned order, found Kahn’s bid did not violate the section.

DISCUSSION

Ray Bell asserts the circuit court erred as a matter of law in upholding the hearing officer’s finding that Kahn complied with both the invitation for bids and the applicable law when it listed alternate subcontractors in its bid. We disagree.²

The instructions to bidders provided, in part, that the bid was covered by certain provisions of state law including S.C.Code Ann. § 11-35-3020 (1986 & Supp.1995). The instructions stated:

.1 Any bidder in response to an Invitation for Bids shall set forth in his bid the name of each subcontractor so identified in the Invitation for Bids. If the bidder determines to use his own employees to perform any portion of the work for which he would otherwise be required to list a subcontractor and if the bidder is qualified to perform such work under the terms of the Invitation for Bids, the bidder shall list himself in the appropriate place in his bid and not subcontract any of that work except with the approval of the using Owner for good cause shown.

.2 Failure to list subcontractors in accordance with this section and any regulation which may be promulgated by the State shall render the prime contractor’s Bid unresponsive.

S.C.Code Ann. § ll-35-3020(2)(b) (Supp.1995), which is a part of the State Consolidated Procurement Code, provides in part:

(i) The using agency, in consultation with the architect-engineer assigned to the project, shall identify by specialty in the invitation for bids all subcontractors, as defined by applicable documents of the American Institute of Architects, who are expected to perform work or render service to the prime contractor to or about the construction when those subcontractors’ contracts are each expected to exceed three percent of the prime contractor’s total base bid. In addition, the using agency, in consultation with the architect-engineer assigned to the project may identify by specialty in the invitation for bids any subcontractors who are expected to perform work which is vital to the project. The determination of which subcontractors are included in the list provided in the invitation for bids is not protestable under Section 11-35-4210 or any other provision of this code. Any bidder in response to an invitation for bids shall set forth in his bid the name of each subcontractor so identified in the invitation for bids. If the bidder determines to use his own employees to perform any portion of the work for which he would otherwise be required to list a subcontractor and if the bidder is qualified to perform such work under the terms of the invitation for bids, the bidder shall list himself in the appropriate pláce in his bid and not subcontract any of that work except with the approval of the using agency for good cause shown.

(ii) Failure to complete the list provided in the invitation for bids renders the bidder’s bid unresponsive.

In its bid, Kahn listed subcontractors for various portions of the work. For the roofing work, Kahn listed “Piper or Pickens.” For the structural steel work, Kahn listed “G.C. and or McAbee or Falcon.” For masonry, Kahn listed “GC and/or Pettit and/or Brickmaster and/or Marion and/or Byers and/or New Carolina and/or Cherokee and/or Gouch.” After Ray Bell questioned these listings, Kahn advised the director of facilities it intended to award the roofing by type with conventional build-up roof system awarded to Piper and metal roofing to Pickens. As for the structural steel and masonry, Kahn indicated it intended to perform the work itself, but would enlist the aid of the subcontractors in the order listed on the form if additional manpower was necessary.

Evidence at the administrative hearing indicated both Piper and Pickens bid for the whole roofing job without breaking it down into smaller components. After Kahn was awarded the contract, it obtained a breakdown from both subcontractors separating the prices for the conventional roofing from the prices for the metal roofing. Kahn decided to award the full roofing subcontract to Piper at Piper’s original bid price. Evidence at the administrative hearing also indicated McAbee did not quote the structural steel job to Kahn and, of the seven subcontractors listed for masonry, only Pettit gave Kahn a bid for the whole job. The master found Kahn awarded the subcontracts to the subcontractors listed on its bid at the prices originally submitted by the subcontractors, except for the steel erection and masonry, which it intended to perform itself. The master also concluded Kahn did not bid shop and offered credible reasons for listing multiple subcontractors.

Ray Bell argues Kahn’s alternative listing of subcontractors for portions of the work violates the invitation for. bids and section 11-85-8020 because Kahn failed to specify prior to bid opening which subcontractors it would use to perform work on the project. Ray Bell contends the manner in which Kahn listed its subcontractors allowed Kahn to choose the subcontractors it would use after it was awarded the contract, thereby creating a situation that fostered post-award bid shopping in violation of the intent of the law. According to Ray Bell’s argument, Kahn’s ultimate intentions in listing more than one subcontractor are not relevant because Kahn’s bid violated the subcontractor listing law on its face.

The determination of legislative intent is a matter of law. Charleston County Parks & Recreation Comm’n v. Somers, 319 S.C. 65, 459 S.E.2d 841 (1995). If a statute’s language is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning. Paschal v. State Election Comm’n, 317 S.C. 434, 454 S.E.2d 890 (1995). The appellate court cannot construe a statute without regard to its plain and ordinary meaning and may not resort to subtle or forced construction in an attempt to limit or expand its scope. Id. at 436-37, 454 S.E.2d at 892.

We agree with the circuit court’s conclusion that the express language of section ll-35-3020(2)(b) provides the failure to complete the list in the invitation for bids renders the bidder’s bid unresponsive. The clear language of the statute, however, does not state that listing of alternative subcontractors renders the bid unresponsive. Moreover, in such a case the court cannot rewrite the statute and inject into it matters not in the legislature’s language. Timmons v. South Carolina Tricentennial Comm’n, 254 S.C. 378, 175 S.E.2d 805 (1970), cert. denied, 400 U.S. 986, 91 S.Ct. 460, 27 L.Ed.2d 435 (1971). Kahn’s listing of alternative subcontractors, therefore, did not render its bid unresponsive under section ll-35-3020(2)(b). See Thomas P. Carney, Inc. v. City of Trenton, 235 N.J.Super. 372, 562 A.2d 807, 811 (App.Div. 1988) (“[i]f the Legislature perceives a need to either ban the use of multiple subcontractors within a given trade, or require that each subcontractor named receive a contract, or impose conditions on the use of such a bid, we are confident that it will enact the necessary legislation to amend the statute.”).³

AFFIRMED.

STILWELL, J., concurs. CURETON, J., dissents in a separate opinion.

1 . Although the school district’s procurement code provided for the appeal of the purchasing agent’s decision to the district procurement review panel, no such panel existed at the time of Ray Bell’s protest. Ray Bell, therefore, filed a declaratory judgment action against the school district to require the school district to provide the construction company with due process. As a result, Ray Bell, the school district. and Kahn entered into several stipulations providing the master-inequity would serve as the designated hearing officer of the district for final administrative review of Ray Bell’s protest. The parties agreed the master would have all the authority accorded an administrative agency hearing a bid protest under the school district's procurement code or under the South Carolina Consolidated Procurement Code. The parties further agreed the decision of the master would be the final administrative decision regarding Ray Bell’s protest.

2 . Because we affirm on this ground, we do not address Ray Bell’s remaining arguments. See Advance Int’l, Inc. v. North Carolina Nat’l Bank of S.C., 320 S.C. 533, 466 S.E.2d 367 (1996) (wherein the supreme court vacated an opinion by the court of appeals to the extent certain issues were addressed in dicta).

3 . Ray Bell and the dissent both rely on Prismatic Dev. Corp. v. Somerset County Bd. of Chosen Freeholders, 236 N.J.Super. 158, 564 A.2d 1208 (App.Div.1989). Their dependence on Prismatic is unjustified. The court in that case interpreted the New Jersey bid statute by relying heavily upon extensive legislative history and a governor’s veto. Id. 564 A.2d at 1211-12. Unlike the court in Prismatic, but similar to the case here, the court in Thomas P. Carney, Inc. v. City of Trenton, 235 N.J.Super. 372, 562 A.2d 807, 811 (App.Div.1988), did not consider legislative history. Indeed it would be inappropriate in this case to consider extrinsic matters because as we mentioned above the language of the statute in issue is clear and unambiguous. See 73 Am.Jur.2d Statutes § 151, at 355-56 (1974) ("where the language of a statute is unambiguous, consideration of the history of the legislation is not permissible.”)

As we have done here, the court in Carney refused to “rewrite the law to include therein something which those charged with the legislative responsibility might have inserted if the matter had been called to their attention.” Carney, 562 A.2d at 811 (quoting Township of Brick v. Spivak, 95 N.J.Super. 401, 231 A.2d 380 (App.Div.1967)).