The Mississippi State Port Authority at Gulfport v. Eutaw Construction Company, Inc.

• Court: Mississippi Supreme Court
• Decided: June 9, 2022
• Docket: 2020-IA-00881-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2020-IA-00881-SCT

THE MISSISSIPPI STATE PORT AUTHORITY AT GULFPORT

v.

EUTAW CONSTRUCTION COMPANY, INC.

DATE OF JUDGMENT: 07/22/2020 TRIAL JUDGE: HON. WINSTON L. KIDD TRIAL COURT ATTORNEYS: CHRISTOPHER DANIEL MEYER DORSEY R. CARSON, JR. LOWRY CHRISTOPHER LOMAX M. BRANT PETTIS JAMES E. LAMBERT, III JAMES KENNETH WETZEL BEN H. STONE DOUGLAS T. MIRACLE MATTHEW WARD McDADE BRYAN CARL SAWYERS COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: M. BRANT PETTIS BEN H. STONE MARK E. BOND JAMES E. LAMBERT, III ATTORNEYS FOR APPELLEE: DORSEY R. CARSON, JR. ERIC F. HATTEN LINDSAY K. ROBERTS KATHRYN P. GOFF KELLI M. SLATER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: REVERSED AND RENDERED - 06/09/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. This matter involves the award of a construction contract by the Mississippi State Port

Authority at Gulfport (the MSPA) to the low-bidder, W.C. Fore Trucking, Inc. (Fore). Eutaw

Construction Company, Inc. (Eutaw), another bidder, challenged that award, and the Circuit

Court of the First Judicial District of Hinds County reversed the MSPA’s decision to award

the contract to Fore. The MSPA appealed. Finding error, this Court reverses and renders the

decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶2. The Mississippi Legislature created the MSPA as an agency responsible for the

development and operation of the state port located in Gulfport, Mississippi. See Miss. Code

Ann. § 59-5-1 through -69 (Rev. 2013). Following the aftermath of Hurricane Katrina and

pursuant to its statutory responsibility, the MSPA undertook a massive restoration of the state

port consisting of various construction projects. One of those projects was the West Pier +25

Fill-Phase 1, Project No. 005 (the Project), the construction project at issue here.1

¶3. The MSPA issued a bid solicitation for the Project on February 1, 2012. The deadline

to submit a bid was 10:00 a.m. on March 2, 2012. On February 24, 2012, the MSPA issued

Addendum No. 1 to the bid solicitation. This addendum doubled the quantity of riprap and

aggregate base course for the purpose of constructing a temporary haul ramp for the Project.

Additionally, Addendum No. 1 required bidders to submit bids on a revised bid form, which

1 The initial purpose of the Project was to raise the elevation of the west pier at the state port to twenty-five feet above the mean sea level.

2 recognized the addendum’s change to the bid solicitation.2

¶4. On March 6, 2012, the MSPA publically opened the bid envelopes submitted for the

Project. Among the eleven bidders were Eutaw and Fore. Fore’s bid was $19,956,587.98,

which was the lowest bid. Eutaw submitted the second-lowest bid of $22,905,525.

Unbeknownst to the other bidders, however, the MSPA wrote a letter to Fore on March 7,

2012, informing Fore of errors in its bid.

¶5. The errors identified by the MSPA in its March 7, 2012 letter are recited here

verbatim:

1) The original Bid Form, instead of the amended Bid Form that was provided to the bidders, was used by Fore Trucking;

2) The calculations of the cost for certain line items in the Bid Form are incorrect; and

3) The sum of the line item amounts in the Bid Form is significantly less than the “TOTAL AMOUNT OF BASE BID” shown in the Bid Form.

In the letter, the MSPA recited the relevant rule from the Procurement Manual of the

Mississippi Department of Finance and Administration, Rule 3.106.12.4, that governs the

MSPA’s evaluation and decision after the opening of sealed bids and the discovery of errors

in a submitted bid but before the time of the award of the contract. Rule 3.106.12.4 provides

as follows:

(1) Minor Informalities

2 The original bid form required 2,200 square yards of riprap and 2,500 square yards of aggregate base course. The revised bid form, which incorporated Addendum No. 1, increased the bid solicitation requirements to 4,400 square yards of riprap and 5,000 square yards of aggregate base course.

3 Minor informalities are matters of form rather than substance evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible. The Agency Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples include the failure of a bidder to:

(a) Return the number of signed bids required by the Invitation for Bids;

(b) Sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder’s intent to be bound;

(c) Failure to submit literature or samples with bid provided that such literature or samples shall be received prior to any award being made; or

(d) Acknowledge receipt of an amendment to the Invitation for Bids, but only if:

(I) It is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

(ii) The amendment involved had a negligible effect on price, quantity, quality, or delivery.

(2) Mistakes Where Intended Correct Bid Is Evident

If the mistake and the intended correct bid are clearly evident on the bid document, the bid shall be corrected on the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the bid document are typographical errors, errors in extending unit prices, and mathematical errors.

(3) Mistakes Where Intended Correct Bid is Not Evident

A bidder may be permitted to withdraw a low bid if:

(a) A mistake is clearly evident on the bid document, but the intended correct bid is not similarly evident; or

4 (b) The bidder submits proof of evidentiary value which clearly and convincingly demonstrates that a mistake was made.

12 Miss. Admin. Code Pt. 6, R. 3.106.12.4 (adopted Jan. 1, 2018), Westlaw.

¶6. As stated previously, the first error identified by the MSPA involved Fore’s

submitting its bid on the original bid form instead of the revised bid form as required by

Addendum No. 1. This error caused Fore’s bid to include incorrect quantities for riprap and

aggregate base course.3 Fore, however, affirmatively indicated in its bid that it received

Addendum No. 1. Specifically, Fore recognized the addendum by hand-writing “1” and

“2/24/2012” in a specified blank on the bid form that asked for bidders to note any addenda

that have been received by that bidder. For this reason, the MSPA determined in its letter

that “it is Fore Trucking’s position that its item total amounts for Riprap and the Aggregate

Base Course were based on the quantities specified in the amended Bid Form (4,400 SY and

5,000 SY, respectively).” (Emphasis added.) The MSPA determined that

Based on this representation from Fore Trucking that it intended to bid $159,732.50 for 4,400 SY of Riprap and $35,000.00 for 5,000 SY of Aggregate Base Course, the MSPA finds under Rule 3.106.12.4(1) of the Procurement Manual that it is in the State’s best interest to allow Fore Trucking to correct this informality by resubmitting its bid on the amended Bid Form.

The MSPA further decided that the correction of this error would not prejudice the other

bidders. The total bid for these items, $159,732.50 and $35,000, were the same on both the

original and revised bid forms submitted by Fore. Only the price per unit changed.

3 See n.2

5 ¶7. The second error involved incorrect calculations of certain line item total costs.4

Specifically, Fore incorrectly multiplied the quantity and the unit price of certain line items.

In its letter, the MSPA determined these “mathematical errors to be either minor informalities

that do not prejudice other bidders or mistakes where the intended correct bid is evident

under Rule 3. 106.12.4(1) and (2) of the Procurement Manual.” The MSPA decided that it

was in the State’s best interest to allow these errors to be corrected.

¶8. The third error involved a discrepancy between the sum of the line item totals and the

“total amount of base bid” that Fore expressed in its bid. Fore listed the “total amount of

base bid” as $19,956,587.98. The sum of the line item totals, however, was $19,121,886.96.

4 The following chart represents the incorrect calculation of certain line items, as submitted by Fore and then their proper calculation as indicated by the MSPA:

Description Approximate Unit Price Item Total Proper Quantity Calculation Erosion Control 27,500 SY $0.80 $22,146.00 $22,000.00 Blanket

Slope Drains 16 units $3,436.05 $54,976.84 $54,976.80 Turbidity Barrier 700 LF $18.686 $13,080.00 $13,080.20 Wattles 1,000 LF $4.85 $4,853.56 $4,850.00 Vertical 15,652,000 LF $0.383 $6,000,000.00 $5,994,716.00 Drains Temp. Chain 3,600 LF $2.22 $8,000.00 $7,992.00 Link Fence Ag. Gypsum 26 tons $168.65 $4,385.00 $4,384.90 Grassing 2,200 MSF $6.16 $13,550.00 $13,552.00

6 The original bid form and the revised bid form both provided that “[i]n the case of

discrepancy between the sum of the items and the Total Amount of Bid, the sum of the items

shall be considered to be the Total Amount of Bid.” Based on that language, the MSPA

determined that the “controlling total amount” of Fore’s bid was $19,116,447.98, i.e., the

sum of the line item totals ($19,121,886.96) less the overages resulting from the calculation

errors addressed under the second error ($5,439.98). The MSPA further determined that the

intended correct bid amount was not evident from the Bid submitted. Accordingly, the

MSPA decided that it “will accept Fore Trucking’s Bid of $19,116,44[7].98 or allow Fore

Trucking to withdraw its Bid under the provisions of Rule 3.106.12.4(3) of the Procurement

Manual.”

¶9. On March 8, 2012, Fore sent a reply letter to the MSPA that acknowledged the errors

it had made. Attached to Fore’s reply letter was the revised bid form that included the

pertinent corrections pursuant to the March 7, 2012 MSPA letter. This time, along with the

other corrections, Fore listed the “total amount of base bid” as $19,116,447.98, as advised

by the MSPA. The MSPA then declared Fore the lowest bidder and awarded it the Project

contract.

¶10. On March 12, 2012, Eutaw formally submitted a bid protest to the MSPA that

challenged the MSPA’s decision to award the contract to Fore. In its bid protest, Eutaw

indicated that it had “reason to believe” Fore was a nonresponsive bidder. The MSPA found

Eutaw’s bid protest without merit and issued a denial shortly after Eutaw submitted its bid

protest. Eutaw filed a supplemental bid protest, but the MSPA did not respond. Eutaw then

7 appealed the MSPA’s decision to the circuit court.5

¶11. Eutaw’s appeal to the circuit court began on April 24, 2012 when it filed its “Notice

of Appeal and Bill of Exceptions.” The MSPA, on May 29, 2012, sought to dismiss this

appeal by arguing that Eutaw could only proceed via writ of certiorari. In response, Eutaw

filed its original and amended petition for writ of certiorari in a new case. Again, the MSPA

filed a motion to dismiss and argued lack of jurisdiction.

¶12. Eutaw moved to consolidate the two cases, and the circuit court consolidated them on

November 20, 2012. The circuit court heard oral arguments on February 21, 2013. The

MSPA filed a third motion to dismiss but withdrew that filing after the circuit court—on

February 28, 2014—ultimately decided to grant Eutaw’s amended petition for writ of

certiorari and agreed to hear the merits of the case.

¶13. After the parties briefed the matter and participated in oral argument, the circuit court

entered an order and opinion on July 22, 2020.6 The circuit court found that the MSPA’s

decision to award the contract to Fore was arbitrary, capricious, and illegal because Fore’s

bid submission was not evident from the face of the bid, and the errors within the bid were

not minor. Specifically, the circuit court reasoned that because the MSPA sent a letter to

5 Before Eutaw appealed to the circuit court, it appealed its bid protest to the Public Procurement Review Board (PPRB). In the interim, the Mississippi legislature passed and the governor signed House Bill 1091, which removed the MSPA and all its procurements from the purview of the PPRB. H.B. 1091, Reg. Sess., 2012 Miss. Laws ch. 485. In response, the PPRB notified Eutaw that it was withholding its ruling on the appeal and returned Eutaw’s protest to the MSPA. 6 The record provides no reason for the delay of time between when the circuit court decided to hear the case in 2014 and when it entered its order and opinion in 2020.

8 Fore requesting “clarification,” the errors on Fore’s bid could not have been evident on the

face of the bid. The circuit court further opined that the MSPA should have instead corrected

the bid itself if the MSPA had determined that the errors in Fore’s bid were evident on its

face. As the circuit court saw it, Fore’s errors in its bid were not minor, since Fore’s revised

bid doubled the quantity of two line items, riprap and aggregate base course. Also, the circuit

court determined that the MSPA improperly allowed Fore to alter its bid after bid opening.

For these reasons, the circuit court reversed the decision of MSPA that awarded the Project

contract to Fore.

¶14. Aggrieved, the MSPA sought an interlocutory appeal on August 12, 2020, which this

Court granted on October 1, 2020.

ISSUES PRESENTED

I. Whether Fore’s bid irregularities were minor and evident on the face of the bid.

II. Whether the MSPA violated Mississippi law by allowing Fore to correct its bid after bid opening.

STANDARD OF REVIEW

¶15. The standard of review this Court employs when reviewing an administrative agency’s decision is to determine whether the judgment “(1) [w]as supported by substantial evidence; or (2) [w]as arbitrary or capricious; or (3) [w]as beyond the power of the lower authority to make; or (4) [v]iolated some statutory or constitutional right of the complaining party.”

Hill Bros. Const. & Eng’g Co. v. Miss. Transp. Comm’n, 909 So. 2d 58, 64 (Miss. 2005)

(alterations in original) (internal quotation marks omitted) (quoting Landmark Structures,

Inc. v. City Council of Meridian, 826 So. 2d 746, 749 (Miss. 2002)). “A rebuttable

9 presumption exists in favor of the action of an administrative agency, and the burden of proof

is on the party challenging an agency’s action.” Id. (citing Pub. Emps.’ Ret. Sys. v.

Marquez, 774 So. 2d 421, 425 (Miss. 2000)).

¶16. We are not conducting a review de novo, nor are we reviewing this case under the

abuse of discretion standard. We must decide whether the MSPA’s award of the Project

contract to Fore was arbitrary and capricious and supported by substantial evidence. Hill

Bros., 909 So. 2d at 64 (quoting Landmark Structures, 826 So. 2d at 749). As the appellate

court, we may not reweigh the facts, nor may we substitute our judgment for that of the

agency. Miss. Pub. Serv. Comm’n v. Merchs. Truck Line, Inc., 598 So. 2d 778, 782 (Miss.

1992).

DISCUSSION

¶17. The circuit court reversed the decision of the MSPA awarding the Project contract to

Fore. The MSPA appealed, raising the following issues to this Court: (1) whether Fore’s bid

irregularities were minor and evident on the face of the bid, and (2) whether the MSPA

violated Mississippi law by allowing Fore to correct its bid after bid opening. After careful

consideration, we reverse and render the judgment of the circuit court.

I. Whether Fore’s bid irregularities were minor and evident on the face of the bid.

¶18. The MSPA determined that Fore made the following three errors in its original bid

submission: (1) Fore submitted its bid on the original bid form instead of the revised bid form

as required by Addendum No. 1; (2) Fore incorrectly calculated certain line item total costs;

and (3) Fore included a discrepancy between the sum of the line item totals and the “total

10 amount of base bid” that Fore expressed in its bid. Ultimately, the MSPA determined that

these errors could be corrected pursuant to Rule 3.106.12.4. We will address each error and

the MSPA’s decision regarding each error below.

A. Fore’s First Error Involving the Bid Form

¶19. During the bid solicitation, the MSPA issued Addendum No. 1, which Fore received.

Fore, however, neglected to submit its bid on the revised bid form that recognized the

changes in quantity for riprap and aggregate base course, as required by Addendum No. 1.

Instead, Fore submitted its bid on the original bid form. In doing so, Fore placed a bid for

2,200 square yards of riprap at $72.60 per unit for a total of $159,720 and a bid for 2,500

square yards of aggregate base course at $14 per unit for a total of $35,000.7

¶20. After the MSPA sent its March 7, 2012 letter informing Fore of this first error, Fore

corrected and resubmitted its bid on the revised bid form that recognized the proper quantity

for riprap and aggregate base course as required by Addendum No. 1. Importantly, Fore’s

line item bid total for both riprap and aggregate base in the revised bid remained the same

as what was given in the original bid. The only change that occurred in the revised bid,

relating to the additional riprap and aggregate base course, was the amount required and the

unit price for each. Specifically, when it resubmitted its bid, Fore placed a bid for 4,400

square yards of riprap at $36.30 per unit for a total of $159,720 and a bid for 5,000 square

yards of aggregate base course at $7 per unit for a total of $35,000.

7 In these bid forms, it appears the quantity is pre-written by the MSPA. This makes the bid total for that line item determinative of the unit price that a bidder decides to offer, or vice versa.

11 ¶21. Pursuant to Rule 3.106.12.4(1), the MSPA determined that this error was minor and

that it did not prejudice other bidders, and for those reasons, the MSPA allowed Fore to

correct the error. Specifically, the MSPA relied on the fact that Fore acknowledged that it

had received Addendum No. 1 when Fore submitted its original bid. Eutaw argues that this

error is not minor, despite such acknowledgment, because it involved a change in price and

quantity.

¶22. One of the cases cited and relied on by both parties is Hill Brothers Construction &

Engineering Co. v. Mississippi Transportation Commission, 909 So. 2d 58 (Miss. 2005).

In Hill Brothers, an unsuccessful bidder on a highway construction project brought an action

against the Mississippi Transportation Commission, arguing that the construction contract

was wrongfully awarded to the successful bidder. Id. at 59-60. Specifically, the

unsuccessful bidder insisted that because the successful bidder neglected to sign the

acknowledgment of the receipt of an addendum, the successful bidder had been

nonresponsive. Id. at 63. The unsuccessful bidder relied on “Smith v. Holmes County, 242

Miss. 750, 137 So. 2d 195 (1962), for the proposition that an unsigned bid may not be

accepted.” Hill Bros., 909 So. 2d at 68. This Court disagreed and reasoned that the “[the

unsuccessful bidder’s] reliance on Smith is without merit and not supported by the facts sub

judice. The rule in Smith is inapplicable because there was clearly a signed bid by [the

successful bidder] at the time the bids were opened.” Id. (footnote omitted).

¶23. Further, this Court held that the successful bidder’s error of neglecting to sign the

acknowledgment of the receipt of addendum was a mere “minor irregularity” that the

12 Mississippi Transportation Commission could waive. Id. at 70. The Court came to that

conclusion because it reasoned that such an error “did not alter or destroy the competitive

bidding process, did not affect the price, quality or quantity of its bid, did not give [the

successful bidder] any economic advantage over other bidders, and there was no opportunity

for fraud or favoritism[.]” Id. (citing J.H. Parker Constr. Co. v. Bd. of Aldermen of

Natchez, 721 So. 2d, 671, 677 (Miss. Ct. App. 1998)). The Court continued by pointing out

that the Mississippi Transportation Commission’s waiver did not prejudice the rights of the

public or the other bidders and that the Mississippi Transportation Commission “considered

this matter seriously, made the appropriate findings, and acted within its discretion in

accepting [the successful bidder’s] bid.” Id.

¶24. Here, when Fore submitted a bid on the wrong form, Fore’s submission included the

incorrect quantity for riprap and aggregate base course. Fore, however, acknowledged that

it received Addendum No. 1 on the original bid that it first submitted.8 Also, when Fore

resubmitted its bid on the correct revised bid form with the correct quantity amounts, the bid

for both riprap and aggregate base course remained the same as what was contained in Fore’s

original bid. The MSPA considered these facts to mean that “Fore Trucking intended to bid

$159,732.50 for 4,400 SY of Riprap and $35,000.00 for 5,000 SY of Aggregate Base

Course[.]” We agree with this interpretation because Fore’s bid never changed. See id. n.5

(“The word ‘bid’ is defined as: ‘[a] submitted price at which one will perform work or supply

8 Fore’s acknowledgment of Addendum No. 1 is, itself, even supported by the additional fact that Fore recognized the addendum by handwriting “1” and “2/24/2012” in a specified blank on the bid form that asked for bidders to note any addenda that have been received by that bidder.

13 goods.’” (alteration in original) (quoting Bid, Black’s Law Dictionary (7th ed. 2000))).

Nothing about the MSPA’s decision to allow Fore to resubmit its bid on the revised bid form

changed the total price for either riprap or aggregate base course. This fact further supports

the MSPA’s determination that Fore always intended to submit its bid on the revised bid

form. Therefore, the MSPA’s decision to allow the error to be corrected did not affect the

“price, quality or quantity of [the] bid[.]” Id. at 70. That decision was not arbitrary and

capricious.

¶25. Further, “[m]inor informalities are matters of form rather than substance evident from

the bid document, or insignificant mistakes that can be waived or corrected without prejudice

to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual

conditions is negligible.” 12 Miss. Admin. Code Pt. 6, R. 3.106.12.4(1). For the same

reasons as stated above, we agree with the MSPA that, pursuant to Rule 3.106.12.4(1),

Fore’s first error is minor, and no prejudice occurred by allowing it to be corrected. Again,

the decision to allow the correction was not arbitrary and capricious.

B. Fore’s Second Error Involving Line Item Calculations

¶26. The MSPA determined that Fore’s second error involved incorrect calculations of line

item totals. Clearly, the MSPA found that Fore incorrectly multiplied the quantity and the

unit price of several line items. The MSPA found these “mathematical errors to be either

minor informalities that do not prejudice other bidders or mistakes where the intended correct

bid is evident under Rule 3.106.12.4(1) and (2) of the Procurement Manual.” Again, Eutaw

argues that such errors cannot be minor because they impact the bid price. Eutaw also argues

14 that these errors are not merely mistakes when the intended correct bid is still evident

because the incorrect calculations made it impossible to discern the intended bid without

clarification.

¶27. As discussed above, Rule 3.106.12.4(1) defines minor errors as “matters of form

rather than substance evident from the bid document.” 12 Miss. Admin. Code Pt. 6, R.

3.106.12.4(1). These errors have a mere “negligible” effect on price or quantity. Id.

Negligible means something that is “so small or unimportant or of so little consequence as

to warrant little or no attention.” Negligible, Merriam-Webster,

https://www.merriam-webster.com/dictionary/negligible (last visited May 26, 2022).

¶28. The MSPA determined that Fore’s miscalculation errors were minor because the

errors were discovered through a simple mathematical procedure. In actual practice, no

effect on the bid occurred because the quantity and unit price remained the same for each

miscalculated line item once Fore resubmitted its bid correctly. See Hill Bros., 909 So. 2d

at 70 (providing that minor errors are errors that do not affect “the price, quality or quantity

of [the] bid[.]”). For that reason, we agree with the MSPA that such errors have a

“negligible” effect and are minor. 12 Miss. Admin. Code Pt. 6, R. 3.106.12.4(1). This

determination was not arbitrary and capricious.

¶29. The MSPA also determined that Fore’s second error was one in which the intended

bid was still evident. Rule 3.106.12.4(2) provides that

If the mistake and the intended correct bid are clearly evident on the bid document, the bid shall be corrected on the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the bid document are typographical errors, errors in extending unit prices, and

15 mathematical errors.

12 Miss. Admin. Code Pt. 6, R. 3.106.12.4(2).

¶30. In W & W Contractors, Inc. v. Tunica County Airport Commission, 881 So. 2d 358,

360-61 (Miss. Ct. App. 2004), an unsuccessful bidder argued that the county airport

commission wrongfully permitted the successful bidder to amend its bid to address an error.

This error involved a discrepancy in the unit price per foot for a line item. Id. at 362. “In

words, [the successful bidder] provided the price as ‘eight hundred seventy-five’ but in

numbers [the successful bidder] provided ‘8.75.’” Id. The county airport commission

waived the error and interpreted the successful bidder’s unit price for that line item as $8.75

per foot. Id. The unsuccessful bidder argued that such action by the county airport

commission constitutes “erroneous post-submission modification.” Id. The county airport

commission responded that it “simply interpreted the bid in the light of its most logical

meaning and fulfilled its obligations to the taxpayers of Tunica County by awarding the

contract to the lowest bidder.” Id.

¶31. The Court of Appeals did not agree with the unsuccessful bidder that “the

Commission was . . . allowing [the successful bidder] to amend or modify its unit pricing[.]”

Id. Instead, the Court of Appeals reasoned that the county airport commission “was

interpreting the correct price for the [line item].” Id. (emphasis added). The Court of

Appeals concluded, and we agree, that “[t]he actions of the Commission were appropriate

because the error and the correct bid amount were evidenced on the face of the bid

document.” Id. (emphasis added).

16 ¶32. Like the county airport commission in W & W Contractors, the MSPA determined

that it could discern the error in Fore’s bid and Fore’s intended correct bid. See id. Even

more favorable to Fore, pursuant to Rule 3.106.12.4(2), the MSPA determined that Fore’s

second error involved mere “mathematical errors” that could be corrected. 12 Miss. Admin.

Code Pt. 6, R. 3.106.12.4(2). Fore simply miscalculated the total price for certain line items.

Nothing about this error involved anything but simple, mathematical—specifically,

multiplication—errors. For these reasons, we agree with the MSPA that, in light of these

mathematical errors, Fore’s intended correct bid was still evident. See 12 Miss. Admin. Code

Pt. 6, R. 3.106.12.4(2). Such a determination was not arbitrary and capricious.

C. Fore’s Third Error Involving the Listed Total Bid

¶33. The third error identified by the MSPA involved a discrepancy between the sum of

the line items in Fore’s bid and the “total amount of base bid” listed in Fore’s bid. The

original bid form that Fore submitted its bid on provided that “[i]n case of discrepancy

between the sum of the items and Total Amount of Bid, the sum of the items shall be

considered to be the Total Amount of Bid.” As mentioned previously, the MSPA gave Fore

two options: either accept Fore’s bid as the sum of the line items or allow Fore to withdraw

its bid. The MSPA determined that it was acting pursuant to Rule 3.106.12.4(3). Fore

ultimately corrected its bid by providing that the total amount of the bid was indeed the sum

of the line items.

¶34. Regarding this third error, Eutaw argues “that MSPA [did] not follow the proper

procedure set out by the Procurement Manual for such circumstances.” We conclude that the

17 MSPA’s decision regarding Fore’s third error is not subject to reversal. The MSPA’s

analysis, however, is in need of slight correction.

¶35. The MSPA analyzed Fore’s third error pursuant to Rule 3.106.12.4(3). That rule

provides that “[a] bidder may be permitted to withdraw a low bid if: (a) A mistake is clearly

evident on the bid document, but the intended correct bid is not similarly evident . . . .” 12

Miss. Admin. Code Pt. 6, R. 3.106.12.4(3). However, “[i]f the mistake and the intended

correct bid are clearly evident on the bid document, the bid shall be corrected on the intended

correct bid and may not be withdrawn.” 12 Miss. Admin. Code Pt. 6, R. 3.106.12.4(2)

(emphasis added).

¶36. We conclude that the intended correct bid was evident in light of the bid form’s

requirement that the sum of the line items controls. See W & W Contractors, 881 So. 2d at

362 (concluding that “[t]he actions of the Commission were appropriate because the error

and the correct bid amount were evidenced on the face of the bid document.” (emphasis

added)). Like in W & W Contractors, the MSPA was merely “interpreting” Fore’s bid. Id.

Here, Fore, again, simply miscalculated: Fore miscalculated the total amount of the bid.

Similar to the second error, however, nothing about this third error involves anything more

than a simple, mathematical error, this time addition. Since the intended correct bid was

evident, the MSPA should have analyzed Fore’s third error under Rule 3.106.12.4(2). See

id.

¶37. This correction is within the bounds of our above-stated standard of review. See Hill

Bros., 909 So. 2d at 64 (quoting Landmark Structures, 826 So. 2d at 749. We only correct

18 how the MSPA legally analyzed Fore’s third error. As Fore did not ask to withdraw its bid,

the distinction here is insignificant. The result—concluding that permitting Fore to correct

its bid was proper—remains unchanged. The ultimate decision to permit Fore to correct its

bid was not arbitrary and capricious.

II. Whether the MSPA violated Mississippi law by allowing Fore to correct its bid after bid opening.

¶38. The circuit court also determined that the MSPA improperly allowed Fore to alter its

bid after bid opening. The circuit court reasoned that Mississippi law does not allow a bidder

to alter its bid after bid opening. In making this decision, the circuit court relied heavily on

Hemphill Construction Co. v. City of Laurel, 760 So. 2d 720, 721-22 (Miss. 2000).

¶39. In Hemphill, a successful bidder was permitted to amend its bid after bid opening that

“substantially increase[d] the bid price[.]” Id. at 724 (emphasis added). This Court reversed

that decision and held that “the relevant public bid laws do not allow a governing authority

to accept a bid price increase after sealed bids are opened, except where the error and the

intended correct bid are evident on the face of the bid document.” Id. (emphasis added).

¶40. Here, as stated above, the errors and the intended correct bid were evident on the face

of Fore’s original bid. Further, Fore’s corrected bid was a decrease in price, not an increase.

Fore’s bid decreased from $19,956,587.98 to $19,116,447.98. At all times—including before

and after Fore resubmitted its bid on the revised bid form—Fore was the low bidder in the

MSPA’s bid solicitation for the Project. Fore’s corrections, which lowered the cost to

taxpayers of what was already the lowest bid, is not what Hemphill is meant to protect

against. For these reasons, we conclude that this case is unlike Hemphill and that the MSPA

19 did not violate public bid laws. See id. The circuit court’s reliance on Hemphill is

misguided. Id.

CONCLUSION

¶41. Fore’s errors involved instances in which the error was minor, and it and the intended

correct bid were evident on the face of the bid. See Hill Bros., 909 So. 2d at 70; see also W

& W Contractors, 881 So. 2d at 362. Also, Fore’s corrected bid was a decrease in price. See

Hemphill, 760 So. 2d at 724. For these reasons, the MSPA properly followed Rule

3.106.12.4 in allowing Fore to correct its bid. Its decision was not arbitrary and capricious.

The record reflects that the MSPA clearly articulated Fore’s errors, the rules that allowed for

the correction of those errors, and the MSPA’s reasons for allowing the corrections.

Therefore, we reverse the circuit court’s decision and render judgment in favor of the MSPA.

¶42. REVERSED AND RENDERED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR.