Stoetzel & Sons, Inc. v. City of Hastings

658 N.W.2d 636, 265 Neb. 637, 2003 Neb. LEXIS 47
CourtNebraska Supreme Court
DecidedMarch 28, 2003
DocketS-01-1379
StatusPublished
Cited by37 cases

This text of 658 N.W.2d 636 (Stoetzel & Sons, Inc. v. City of Hastings) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stoetzel & Sons, Inc. v. City of Hastings, 658 N.W.2d 636, 265 Neb. 637, 2003 Neb. LEXIS 47 (Neb. 2003).

Opinion

Connolly, J.

The appellant, Stoetzel & Sons, Inc. (Stoetzel), bid on a contract to construct a service department warehouse for the City of Hastings (City). At an open meeting held on November 13, 1998, the board of public works (Board) accepted the lower bid of a competing contractor. Stoetzel claims it is entitled to injunctive relief because of alleged irregularities in the bidding process. It also claims that the Board violated the public meetings law by failing to make the submitted bids available at the November 13 meeting. See Neb. Rev. Stat. § 84-1412(8) (Cum. Supp. 2002).

*639 The district court granted summary judgment for the City on Stoetzel’s cause of action for injunctive relief and directed a verdict for the City on the public meetings law cause of action. Because we conclude that the cause of action for injunctive relief is moot and that Stoetzel waived its public meetings law cause of action, we affirm.

FACTUAL BACKGROUND

Bid Proposal and Specifications

In 1998, the Board authorized Hastings Utilities to let bids for the construction of a service department warehouse. The Board directs the operations of Hastings Utilities for the City. The Hastings Utilities staff prepared a document entitled “Bid Proposal and Specifications” and distributed it to prospective bidders. The document divided the warehouse project into three sections: section I was a prefabricated metal building, section II was the site work, and section III was a pond ash fill. Bidders could bid on any one or all of the sections.

The bid proposal and specifications set out instructions for how the bids were to be made. These instructions stated, “All Proposals shall be submitted on the Proposal forms hereto attached ...” Stoetzel contends that the instructions and the proposal forms required a unit-price bid, rather than a lump-sum bid, for each section of the project for which a contractor submitted a bid. A unit-price bid requires the bidder to itemize the elements and materials of a project. By contrast, a lump-sum bid is a single bid for the full amount of a project. Stoetzel argues that it is entitled to injunctive relief because the City gave other bidders oral permission to submit lump-sum bids on section I of the warehouse without timely notifying Stoetzel of the change.

The parties dispute to what extent the City could alter or waive the requirements in the bid proposal and specifications. It provided that Hastings Utilities reserves the right (1) to accept the proposal which best suits its needs whether the price is the lowest or not, (2) to reject any or all bids, (3) to waive any informalities, and (4) to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the City. The City argues that under these provisions, Hastings Utilities was responsible for the bidding process and had broad discretion to waive *640 errors and alter the bidding requirements. Stoetzel conceded that the City had the authority to waive minor errors or omissions, but contends that the actions taken by the City went beyond this authority. It also argues that under the bid proposal and specifications, any changes to the bidding instructions had to be in writing.

Bidding Process

The bidding was set to close on November 10, 1998. On November 6, a representative of Westland Building Company (Westland), one of the competing bidders, telephoned Marty Stange, Hastings Utilities’ chief civil and environmental engineer. The representative told Stange that Westland was having difficulty “getting all the subcontractor prices.” Stange told the representative that Westland did not have to fill out every unit price, but warned that if Westland did not fill out the unit prices, it “should take that as an exception at [its] own risk.”

According to Stange, on November 9, 1998, he contacted another bidder, Farris Construction, Inc. (Farris), and told it that, like Westland, it did not have to fill out every unit price if it was having difficulty getting information from subcontractors. Stoetzel was also notified that it did not have to fill out every unit price, but the parties dispute when it received the information. The City claims that an employee of Hasting Utilities telephoned Stoetzel and left a message with someone on November 9. Stoetzel claims that it never received the message and was not notified of the change until November 10, 2 to 3 hours before the bids were due.

Six bidders eventually submitted sealed bids for all or part of the service department warehouse project. Stoetzel bid on sections I and II of the project. It is undisputed that Stoetzel’s bid complied with the requirements of the original bid proposal and specifications. Two other bidders, Westland and Farris, bid on section I. Both submitted lump-sum, rather than unit-price, bids. Of the three bids, Westland’s was the lowest, Farris’ was the second lowest, and Stoetzel’s was the highest.

Stoetzel, Westland, Farris, and Werner Construction (Werner) submitted bids on section II of the project. Both Farris and Westland submitted unit-price bids for section II. Werner’s bid was the lowest, and Stoetzel’s bid was the second lowest.

*641 The bids were opened on November 10,1998. Later that day, Stange telephoned Westland and requested several unit prices so that he could evaluate Westland’s lump-sum bid on section I of the project. Stange wrote these estimates on Westland’s bid. Stoetzel argues that in requesting and writing down the unit prices, Stange acted inconsistently with several provisions of the bid proposal and specifications.

On November 11, 1998, Hastings Utilities released a table identifying the bidders and the amounts of their bids. In an accompanying report, Hastings Utilities recommended to the Board that Westland be awarded section I of the project and that Wemer be awarded section II. The Board accepted these recommendations at an open meeting on November 13. This meeting is discussed in greater detail below.

November 13,1998, Board Meeting

As previously noted, the Board held a regularly scheduled open meeting on November 13, 1998. During the meeting, the Board discussed the bids on the warehouse project and accepted Hastings Utilities’ recommendations. Stoetzel now complains that the November 13 meeting failed to comply with the public meetings law. See Neb. Rev. Stat. § 84-1408 et seq. (Reissue 1999 & Cum. Supp. 2002).

Stoetzel complains that the City violated § 84-1412(6) (Reissue 1999), which provided, at the time of the meeting, that “[p]ublic bodies shall make available at the meeting, for examination and copying by members of the public, at least one copy of all reproducible written material to be discussed at an open meeting.” Isadore H. Stoetzel (Isadore), the owner of Stoetzel, attended the November 13, 1998, meeting and expressed his concerns that the bidding process had been unfair. According to Isadore, the only document circulated at the meeting was the summary of the bids prepared by Hastings Utilities.

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Bluebook (online)
658 N.W.2d 636, 265 Neb. 637, 2003 Neb. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoetzel-sons-inc-v-city-of-hastings-neb-2003.