               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 63

                                                         APRIL TERM, A.D. 2013

                                                                   May 21, 2013

WESTERN WYOMING
CONSTRUCTION CO., INC.,

Appellant
(Plaintiff),

v.
                                                     S-12-0193
BOARD OF COUNTY
COMMISSIONERS OF SUBLETTE
COUNTY, WYOMING,

Appellee
(Defendant).


                    Appeal from the District Court of Sublette County
                         The Honorable Marvin L. Tyler, Judge

Representing Appellant:
      Devon Petersen of Hooper-Strike Law Offices LLC, Lander, Wyoming.

Representing Appellee:
      Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.


Before KITE, C.J., HILL, BURKE, DAVIS, JJ., and GOLDEN, J., Retired.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Western Wyoming Construction Co., Inc. (WWC) submitted a bid for a highway
project in Sublette County, Wyoming. The Board of County Commissioners of Sublette
County (Commissioners) awarded the contract to another company whose bid was higher
than WWC’s. WWC filed a complaint in district court for an order awarding it the
contract for the project. The Commissioners filed a motion for summary judgment which
the district court granted. WWC appeals from the summary judgment order. We reverse
and remand for further proceedings consistent with this opinion.

                                       ISSUES

[¶2] WWC presents the issue for this Court’s consideration as follows:

                     Whether pursuant to W.S. § 16-6-102(a) it is an abuse
             of discretion and, therefore, illegal for a Board of County
             Commissioners to refuse to award a public works contract to
             the lowest responsible resident bidder on the basis that the
             next lowest bid is not significantly higher and was submitted
             by a firm from the same county.

[¶3] The Commissioners restate the issues as follows:

             1. Does a Board of County Commissioners have a right to
                exercise any discretion in awarding a public works
                contract? Subsumed within the question is the following
                subpart:
                  (a) Does Wyo. Stat. Annot. § 16-6-102(a) that allows for
                      a 5% resident preference, foreclose the exercise of
                      discretion in awarding a public works contract
                      between resident bidders?

             2. Was [WWC] a “responsible and responsive qualified
                Bidder” entitled to an award of the contract pursuant to
                the terms of the bid documents?

                                        FACTS

[¶4] On September 6, 2011, Sublette County issued an invitation for bids for a
reconstruction project on Horse Creek Road in Sublette County. WWC, a contractor
based in Lander, Wyoming, submitted a bid for $4,232,854.50. The next lowest bid,
submitted by a contractor based in Sublette County, was for $4,241,074.10. The County
awarded the contract to the Sublette County contractor.

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[¶5] WWC filed a complaint in the district court asserting that it had been prequalified
by the Wyoming Department of Transportation to do the type of work required on the
Horse Creek Road project and as a certified resident of Wyoming it was qualified for a
five percent preference when bidding on public works projects in the State. WWC
further asserted that Wyo. Stat. Ann. § 16-6-102(a) (LexisNexis 2011) mandated that the
contract for the Horse Creek Road project be awarded to it because it was a responsible
certified Wyoming resident and had submitted the lowest bid. Section 16-6-102(a) states
in pertinent part:

               § 1 6-6-102. Resident contractors; preference limitation
               with reference to lowest bid or qualified response; . . .

                       (a) If a contract is let by . . . any county . . . for any
               public work or improvements, the contract shall be let, if
               advertisement for bids or request for proposal is not required,
               to a resident of the state. If advertisement for bids is required,
               the contract shall be let to the responsible certified resident
               making the lowest bid if the certified resident’s bid is not
               more than five percent (5%) higher than that of the lowest
               responsible nonresident bidder.

[¶6] WWC sought an order enjoining the Commissioners from awarding the Horse
Creek Road contract to any other bidder, awarding WWC the contract, and declaring
WWC to be the responsible certified resident with the lowest bid and, therefore, entitled
to the contract. WWC also asked the district court to find that the Commissioners
breached the duty of good faith and fair dealing when they did not award the contract to
the responsible certified resident with the lowest bid.

[¶7] With its complaint, WWC filed a motion for temporary restraining order or
preliminary injunction asking the district court to rescind any contract the Commissioners
had awarded for the project.1 The Commissioners opposed the motion claiming, among
other things, that they had reserved the right to reject any bid and had rejected WWC’s
bid because it did not submit a bond in the amount of ten percent of its bid as required by
the bid instructions and invitation. They further asserted they awarded the contract to the
second lowest bidder because it was a local contractor, its bid was only $8,000 more than
WWC’s and they believed it was “in the best interest of the project to support the local
economy by awarding the project to [the second lowest bidder].”

1
  Actually, WWC’s original complaint asked the district court to prohibit the Commissioners from
entering into a contract with any other party while the case was pending. After WWC became aware that
the Commissioners had awarded the contract to the second lowest bidder, it modified its claim by asking
the district court to rescind the contract.


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[¶8] The district court convened a hearing and heard the parties’ arguments for and
against the motion. It subsequently issued a decision denying the motion for temporary
relief. Based upon the testimony and evidence presented, the district court concluded it
did not have the authority to require the Commissioners to contract with WWC or to
prevent them from contracting with another bidder; the record was insufficient to show
whether the contract awarded or WWC’s bid were valid or invalid; and WWC had failed
to demonstrate that it was entitled to a temporary restraining order or injunctive relief.
The district court subsequently entered an order consistent with its decision.

[¶9] The Commissioners then filed a motion for summary judgment asking for judgment
as a matter of law on all of WWC’s claims. WWC also filed a motion seeking partial
summary judgment on its claim for breach of the covenant of good faith and fair dealing.
After a hearing on the motions, the district court granted the Commissioners’ motion.
The district court entered an order reaffirming its prior ruling on WWC’s claims for a
temporary restraining order or injunctive relief. The district court also held there was no
contract between WWC and the Commissioners to support the claim for breach of the
covenant of good faith and fair dealing. Finally, the district court denied WWC’s claim
for declaratory relief finding that the Commissioners did not act illegally, arbitrarily or
capriciously in awarding the contract to the second lowest bidder. Rather, the court
concluded, the Commissioners made a legitimate executive decision to award the contract
to a company other than WWC. WWC timely appealed the district court’s order.

                              STANDARD OF REVIEW

[¶10] We review a district court’s order on summary judgment de novo. Carnahan v.
Lewis, 2012 WY 45, ¶ 10, 273 P.3d 1065, 1070 (Wyo. 2012).

                                     DISCUSSION

[¶11] WWC contends that § 16-6-102(a) required the Commissioners to award the Horse
Creek Road contract to the responsible certified Wyoming resident making the lowest
bid. Because it was the responsible certified resident that submitted the lowest bid,
WWC asserts the Commissioners acted in contravention of the statute when they awarded
the contract to a contractor that submitted a higher bid. WWC contends § 16-6-102 was
intended to prohibit counties from creating their own preference system for local
contractors. In support of its argument, WWC cites Green River v. DeBernardi, 816 P.2d
1287 (Wyo. 1991).

[¶12] In DeBernardi, the City of Green River published notice for bids for a project
involving the installation of a water main. Id. at 1288. The notice provided that a five
percent preference would be given to Wyoming contractors in accordance with § 16-6-
102. Id. The notice did not mention any additional preference. Id. However, the City
had adopted a policy of giving a ten percent preference to Green River businesses. Id. at


                                            3
1289. DeBernardi, a contractor based in Rock Springs, submitted a bid for $32,665. Id.
Davis, a Green River contractor, submitted a bid for $35,773. Id. The City awarded the
contract to Davis and DeBernardi filed a complaint alleging that the bid was awarded in
contravention of § 16-6-102. The district court concluded § 16-6-102 preempted the field
of residential preferences; therefore, the City’s policy of giving a ten percent preference
to local businesses violated Wyoming public policy and the statute. Id. On appeal, this
Court affirmed.

[¶13] WWC contends the Commissioners’ award of the contract to a higher bidder based
upon a preference for a local contractor violates the plain language of § 16-6-102(a) and
the Court’s ruling in DeBernardi. The Commissioners argue that while DeBernardi
makes clear that only the State and not a municipality can enact laws setting preferences
for awarding public works contracts, neither the case nor the statute prohibits a county
from exercising its discretion to award a multi-million dollar contract to a local business
in an effort to assist the local economy, particularly when the difference in the low bids is
minimal.

[¶14] We conclude the interpretation given § 16-6-102(a) in DeBernardi is inconsistent
with the clear legislative intent. We, therefore, overrule DeBernardi. In doing so, we are
aware that our jurisprudence recognizes a strong interest in adhering to past precedent
under the doctrine of stare decisis. Arnott v. Arnott, 2012 WY 167, ¶ 29, 293 P.3d 440,
453 (Wyo. 2012). However, our jurisprudence also recognizes that departure from
precedent is sometimes appropriate. Id. When precedential decisions are poorly
reasoned, we should not feel compelled to follow them. Brown v. City of Casper, 2011
WY 35, ¶ 43, 248 P.3d 1136, 1146 (Wyo. 2011). Simply put, stare decisis does not
require automatic conformance to past decisions when a decision is contrary to law. In
the instant case, we conclude DeBernardi’s holding that § 16-6-102 preempts the field of
residential preferences in the context of bidders who are both Wyoming residents is
contrary to the legislature’s clear intent. We conclude instead that § 16-6-102 has no
application in that context. Rather, it applies only in the context of competing bids from
a resident and a non-resident contractor.

[¶15] In reaching this result we apply our usual rules of statutory construction:

                      [Our] paramount consideration is to determine the
              legislature’s intent, which must be ascertained initially and
              primarily from the words used in the statute. We look first to
              the plain and ordinary meaning of the words to determine if
              the statute is ambiguous. A statute is clear and unambiguous
              if its wording is such that reasonable persons are able to agree
              on its meaning with consistency and predictability.
              Conversely, a statute is ambiguous if it is found to be vague
              or uncertain and subject to varying interpretations.


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Barlow Ranch, LP v. Greencore Pipeline Co., LLC, 2013 WY 34, ¶ 18, ___ P.3d ____,
____ (Wyo. 2013), citing Michael’s Constr., Inc. v. Am. Nat’l Bank, 2012 WY 76, ¶ 12,
278 P.3d 701, 705 (Wyo. 2012). The determination of whether a statute is clear or
ambiguous is a matter of law for the court. Id. When the language is clear, we give
effect to the ordinary and obvious meaning of the words employed by the legislature. Id.
In ascertaining the meaning of a statutory provision, all statutes relating to the same
subject or having the same general purpose must be considered in pari materia and
construed in harmony. Id.

[¶16] Section 16-6-102 is found in Title 16, Chapter 6, Article 1 of the Wyoming
Statutes which covers public works and contracts. The first seven sections of Article 1
are focused on giving Wyoming contractors and Wyoming materials preference on
Wyoming public works projects. Section 16-6-101 defines resident for purposes of
Article 1 in pertinent part as:

             (i) “Resident” means a person, partnership, limited
             partnership, registered limited partnership, registered limited
             liability company or corporation certified as a resident by the
             department of employment following receipt of an affidavit
             executed by the president of the company or his designee of
             compliance with this act and prior to bidding upon the
             contract or responding to a request for proposal, subject to the
             following criteria:
             ....
                     (C) A corporation organized under the laws of the
             state:
                           (I) With at least fifty percent (50%) of the
             issued and outstanding shares of stock in the corporation
             owned by persons who have been residents of the state for
             one (1) year or more prior to bidding upon the contract or
             responding to a request for proposal;
                           (II) Which has maintained its principal office
             and place of business within the state for at least one (1) year;
             and
                            (III) The president of the corporation has been
             a resident of the state for one (1) year or more immediately
             prior to bidding upon the contract or responding to a request
             for proposal.

Section 16-6-102 requires a county, in a situation where advertisement for bids is not
required, to award the bid to a Wyoming resident. When advertisement for bids is


                                            5
required, the provision requires that the bid be awarded to the lowest resident bidder
unless his bid is more than five percent higher than that of the lowest responsible
nonresident bidder.

[¶17] Contrary to the holding in DeBernardi, § 16-6-102 does not address nor does its
plain language suggest it was intended to address the situation where two Wyoming
residents are the low bidders. Rather, the purpose of the provision, like the other six
sections at the beginning of Article 1, is to encourage in-state industry. Galesburg
Constr. Co. v. Board of Trustees of Mem. Hosp. of Converse County, 641 P.2d 745, 750
(Wyo. 1982). More specifically:

                          By giving Wyoming corporations a handicap in
                  bidding on public contracts, the statute in essence increases
                  the likelihood that a Wyoming corporation will be awarded
                  the contract. When contracts are awarded to Wyoming
                  corporations, as opposed to out-of-state corporations, local
                  industry is encouraged. This contributes to, strengthens, and
                  stabilizes the state and local economy-the primary interest is
                  that of the public. . . . The money payable under the contract
                  is more likely to remain within the state, and enhance the tax
                  base of state and local government.

Id. Section 16-6-102 simply has no application in the context of two resident
contractors.

[¶18] The question is where does that leave WWC and the Commissioners with respect
to the Horse Creek Road project? On the record before us, we cannot answer that
question because no evidence was presented showing where the funds came from to pay
for the project and, consequently, we do not know what statutory provision, if any, is
applicable. Among the possibilities are Wyo. Stat. Ann. § 24-2-108 (LexisNexis 2011),
which applies to road work “any part of the cost of which is paid from the state highway
fund”2 and provides that work costing more than $200,000 “shall be constructed under
contracts awarded after public notice to the lowest responsible bidder.” That provision
2
    Wyo. Stat. Ann. § 24-1-118 (LexisNexis 2011) provides:

                   Excepting as such work may be performed through mutual agreement with other
          entities, either public or private, the construction and maintenance of all state highways . .
          . shall be performed at the expense of the state and by and under the supervision of the
          [state transportation] commission and the director of the department of transportation or
          his authorized representative.

Wyo. Stat. Ann. § 24-1-119 (LexisNexis 2011) creates the state highway fund and makes the monies in
the fund available for road construction or improvement in the state.



                                                        6
may not be applicable to county roads and whether such funds were utilized is a fact that
is not answered by the record presented.

[¶19] Another possibility is Wyo. Stat. Ann. § 24-2-110 (LexisNexis 2011) which
requires county commissioners to establish a separate road construction and maintenance
fund for constructing and maintaining county roads. Under that provision, competitive
bidding is required for any work with an estimated cost over $50,000. During the oral
argument in this Court, a question was raised about whether another statute applied. The
Commissioners stated they would supplement their argument by submitting a citation to
another statute. The Commissioners submitted a letter citing § 24-2-110 but stated
Sublette County had not received funding under that provision. Other than this post-
argument assertion, there is nothing in the record to support a finding by this Court as to
the applicability of § 24-2-110.

[¶20] If neither § 24-2-110 or § 24-2-108 applies, there may be another applicable
statute. In any event, until evidence is presented showing where the money came from to
pay for the Horse Creek Road project, a judicial determination as to the appropriateness
of the bid award is not possible. We, therefore, remand the case to the district court for
presentation of evidence and a determination of whether the award was appropriate.

[¶21] Reversed and remanded for proceedings consistent with this opinion.




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