State ex rel. Deere & Co. v. Missouri State Highway &Transportation Commission

873 S.W.2d 921, 1994 Mo. App. LEXIS 647, 1994 WL 133405
Missouri Court of Appeals·Decided April 19, 1994·No. No. WD 48534·Published

Opinion

TURNAGE, Chief Judge.

Deere and Company filed suit seeking injunction and mandamus against the State Highway and Transportation Commission and for declaratory judgment against the Commission and Richard A. Hanson, Commissioner of the Office of Administration. The petition for declaratory judgment sought the proper interpretation of § 34.350-359, RSMo 1987 Cum.Supp., known as the Domestic Product Procurement Act. The court entered judgment on the declaratory judgment count adverse to the Commission and certified that there was no just cause for delay pursuant to Rule 74.01(b). The Commission appealed and contends that the court erroneously interpreted the statute. Reversed and remanded.

The parties filed a stipulation of facts upon which the case was submitted. Deere does business in the State of Missouri as John Deere Company and is a manufacturer and seller of agricultural and construction implements and lawn and garden products. The Commission is a public agency within the definition of § 34.350.2(1), The Commissioner of the Office of Administration is the head of the department of which the Division of Purchasing and Materials Management is a part. The Division is a public agency within the meaning of § 34.350.2(1). In November 1992 the Commission issued invitations to bid for the purchase of tractors described in the invitation. The invitation to bid directed the bidders’ attention to the Domestic Product Procurement Act. Deere submitted a bid in response to the invitation in which Deere proposed to furnish tractors manufactured, assembled or produced in the United States. When the bids were opened, Deere’s bid was the only one certifying that the tractors described in its bid were manufactured, assembled or produced in the United States. Another bidder, Ford New Holland, Inc., was the low bidder but it certified that its tractors were not manufactured, assembled or produced in the United States. Accepting the Deere bid would not have increased the cost to the Commission by more than ten percent.

The Commission has issued a purchase order to Ford because it found that § 34.353 did not require a preference to be given to the Deere bid because Deere was the only United States manufacturer of the tractors described in the invitation to bid.

In 1992 the Division of Purchasing issued invitations to bid for the purchase of tractors. Deere submitted a bid and certified that the tractors described in its bid were not manufactured, assembled or produced in the United States. Another bidder, Kubota Tractor Corp., certified that its tractors were manufactured, assembled or produced in the United States. The Division indicated it would accept the bid of Kubota because Kubota was entitled to the preference of § 34.353.2 because the Division construes that section to mandate a preference for domestic products when any one or more bidder certifies on [923]*923their bids that the goods or products listed on the bid were manufactured, assembled or produced in the United States, regardless of the number of manufacturers who produce such goods or products in the United States.

It is not surprising that Deere filed this action for declaratory judgment in view of the contradictory interpretation which two state agencies placed on § 34.353.

The court entered a declaratory judgment in which it found that the reference in § 34.-353.2 to “only one line of a particular good or product is manufactured, assembled or produced in the United States” was ambiguous. The court adopted the interpretation of the Division and held that the act does not preclude preference being given to a bidder in a single item bid even though that bidder is the only one to certify that its goods or products are manufactured, assembled or produced in the United States.

The Commission appeals and contends that its interpretation is correct. Neither the Office of Administration, nor the Division of Purchasing has filed a brief. Deere contends that the trial court was correct.

Section 34.353.1, so far as applicable to this case provides:

1. Each contract for the purchase or lease of manufactured goods or commodities by any public agency, and each contract made by a public agency for construction, alteration, repair, or maintenance of any public works shall contain a provision that any manufactured goods or commodities used or supplied in the performance of that contract or any subcontract thereto shall be manufactured, assembled or produced in the United States.
2. This section shall not apply where the purchase, lease, or contract involves an expenditure of less than one thousand dollars. This section shall not apply when only one line of a particular good or product is manufactured, assembled or produced in the United States.
3. This section shall not apply where the executive head of the public agency certifies in writing that:
(1) The specified products are not manufactured, assembled or produced in the United States in sufficient quantities to meet the agency’s requirements or cannot be manufactured, assembled or produced in the United States within the necessary time in sufficient quantities to meet the agency’s requirements;
(2) Obtaining the specified products manufactured, assembled or produced in the United States would increase the cost of the contract by more than ten percent;

In Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31[3-5] (Mo. banc 1988), the Court stated, “The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.”

Deere contends that the statute is ambiguous as found by the trial court. Wolff stated the test of whether or not a statute is ambiguous as follows, “In determining whether the language is clear and unambiguous, the standard is whether the statute’s terms are plain and clear to one of ordinary intelligence.” Id.

The parties focus on the language in § 34.353.2 that “This section shall not apply when only one line of a particular good or product is manufactured, assembled or produced in the United States.” Wolff requires this court to determine whether the statute’s terms are plain and clear to one of ordinary intelligence when the words used in the statute are given their plain and ordinary meaning. The only question can be the meaning of “one line of a particular good or product.” Webster’s Ninth New Collegiate Dictionary (1991) at pg. 694 defines “line” as used in connection with merchandise to mean “merchandise or services of the same general class for sale or regularly available.” Webster’s Third New International Dictionary (1971) at pg. 1413 defines “merchandise” to mean commodities or goods that are bought and sold. Thus, the ordinary meaning of “line of a particular good or product” is goods or products of the same general class. The one line language refers to whether or not there is more than one item manufactured, assembled or produced in the U.S. of [924]*924the same general class as the item for which bids are sought.

In this case the Commission sought bids for a tractor with a diesel engine with a 201 cubic inch displacement and a minimum of 50 H.P. and certain other specifications.

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State ex rel. Deere & Co. v. Missouri State Highway &Transportation Commission, 873 S.W.2d 921, 1994 Mo. App. LEXIS 647, 1994 WL 133405 (Mo. Ct. App. 1994).

873 S.W.2d 921 (State ex rel. Deere & Co. v. Missouri State Highway &Transportation Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Wolff Shoe Co. v. Director of Revenue
762 S.W.2d 29 (Supreme Court of Missouri, 1988)