CHARLES BRANNUM                                             )
and CHRIS BROWNING,                                         )
                                                            )
                          Plaintiffs,                       )
                                                            )
and                                                         )
                                                            )        No. SD33156
CSE ENTERPRISES, LLC,                                       )        Filed: August 27, 2014
                                                            )
                          Plaintiff/Appellant,              )
                                                            )
        vs.                                                 )
                                                            )
CITY OF POPLAR BLUFF, MISSOURI,                             )
                                                            )
                          Defendant/Respondent.             )


                 APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

                             Honorable Michael M. Pritchett, Circuit Judge

AFFIRMED

        CSE Enterprises, LLC (“CSE”) appeals the judgment1 of the trial court concluding CSE

was not entitled to an extraordinary writ (1) ordering the City of Poplar Bluff (“City”) to award a

contract for work on City’s electrical generation plant to CSE, or (2) ordering City to rebid the

contract at issue. We affirm the trial court’s judgment.

1
  Although Charles Brannum (“Brannum”) and Chris Browning (“Browning”) were co-plaintiffs in the underlying
litigation, only CSE appealed the judgment of the trial court. Brannum and Browning did not join in the notice of
appeal.
                                     Factual and Procedural History2

          City, through its Municipal Utilities Division, owns and operates an electrical generation

plant. The plant operates under Environmental Protection Agency (“EPA”) regulations known

collectively as “Reciprocating Internal Combustion Engines National Emission Standards for

Hazardous Air Pollutants” or “RICE NESHAP.”3

          In 2013, City began efforts to bring the plant into compliance with the RICE NESHAP

standards prior to an EPA imposed deadline of May 2, 2014.

                                    Bidding Process and City Evaluations

          City sent requests for bids4 to at least five contractors, including Fairbanks Morse Engine

(“Fairbanks”), which designed several of City’s plant engines, and an advertisement for bids was

placed in a newspaper. In response, City received three bid proposals: CSE’s bid of $735,500;

Fairbanks’ bid of $983,072; and Farabee Mechanical, Inc.’s (“Farabee”) bid of $1,050,567.

          In reviewing the submitted bids Neal Williams (“Williams”), Systems Operations

Supervisor for City, determined that none of the bids met all of City’s bid specifications. On

March 14, 2013, Williams sent an email to all bidders inviting them to contact City with

corrections or supplements to their bids. CSE and Fairbanks both contacted City regarding their

bids in response to Williams’ email.


2
  We note that CSE’s brief contains numerous Rule 84.04 violations in that: (1) it fails to provide citations to the
record in support of the factual assertions in its argument; (2) the statement of facts fails to provide accurate citations
to the record, omits favorable evidence, and sets forth evidence contradictory to the trial court judgment; (3) it fails
to provide a complete and accurate table of authorities; and (4) includes argument beyond its point relied on. Failure
to comply with Rule 84.04 constitutes grounds for dismissal of CSE’s appeal. Porter v. Division of Employment
Sec., 310 S.W.3d 295, 296 (Mo.App. E.D. 2010). Nevertheless, we grant review ex gratia.

All rule references are to Missouri Court Rules (2013).
3
    40 C.F.R. 63 (ZZZZ).
4
  The bid specifications indicated that this was to be a “turnkey” type project where the winning bidder would be
responsible for essentially all elements of the project from design to execution. City reserved the right to negotiate
with bidders in the later stages of the bidding process, and to award the contract based on City’s best interests.

                                                            2
       Thereafter, Williams created a summary sheet rating the respective bids according to bid

specifications, schedule of completion, price, experience, and past working relationship with

City. The evaluation also contained determinations concerning the bidders’ listed and unlisted

exceptions to the specifications.

       Williams ranked Fairbanks first for each of the five categories except for price. Out of

the three bids, Williams ranked CSE third for conformance with specifications, second on

schedule, and third on experience. He left the category for “ease of working together” blank for

CSE and Farabee as City had no experience with these firms; however, City had worked

successfully with Fairbanks on previous projects for City engines.

       William Bach (“Bach”), City’s General Manager of Utilities, presented Williams’

bidding results and recommendations in a letter to City’s Municipal Utility Advisory Board

(“Advisory Board”). Bach advised that although CSE was the low bidder, its bid did not meet

City’s specifications. The Advisory Board recommended acceptance of the Fairbanks bid to the

Poplar Bluff City Council.

                 City Council Meeting and Award of RICE NESHAP Contract

       On April 15, 2013, City Council met to collect information on the RICE NESHAP

project bids, and to award the contract for that project. Bach presented the Advisory Board

recommendation to City Council. He noted the disparity in price between the Fairbanks bid and

the CSE bid, but advised City Council that the CSE bid did not meet the necessary specifications

of the project. Bach further reported that the overall product offered by Fairbanks was better

than that proposed by CSE, and the Advisory Board had concluded this merited approval of

Fairbanks’ higher bid.




                                                3
         Nick Barrack (“Barrack”), owner of CSE, then addressed City Council on behalf of CSE.

After being given the opportunity to present evidence supporting the acceptance of CSE’s bid,

Barrack answered questions from City Council members.                         Barrack admitted CSE had not

replaced catalytic converters of the size required by City’s project. He also agreed that the

thicker metal design submitted in the Fairbanks bid would give superior durability to Fairbanks’

design. He indicated that for CSE to match Fairbanks’ metal thickness, CSE would need to

increase its bid.

         Following Barrack’s presentation, Randy Olsen of Universal Silencer, and Kevin Lidbury

of Fairbanks, presented evidence in favor of the Fairbanks bid.

         In discussing the bids, council members noted that the Fairbanks bid, though higher than

the CSE bid, was still approximately $200,000 below what City had budgeted for the project and

that sometimes “you get what you pay for.” After hearing the presentations of the respective

firms and considering the Advisory Board’s recommendation, City Council, by a vote of 4 to 3,

passed an ordinance accepting the Fairbanks bid for City’s RICE NESHAP project.

                                     CSE’s Challenge to City’s Decision

         Brannum, a property owner and taxpayer in Poplar Bluff, and Browning, a business

owner and taxpayer in Poplar Bluff, along with CSE, filed a joint petition with the Circuit Court

of Butler County seeking relief from City’s decision.                     The petition sought a declaratory

judgment, preliminary injunction, writ of prohibition, and a writ of mandamus.5 On December

20, 2013, the case was tried. On January 16, 2014, the trial court entered its judgment in favor of

City and against plaintiffs on all issues stating:


5
  We note that our courts have discouraged such double-barreled petitions for both writs of prohibition and
mandamus, or joining a request for a writ of prohibition with any other action. See § 530.040.1 RSMo (2000)
(“Applications for the remedy of prohibition shall not be joined with any other or different cause of action . . . .”);
State ex rel. Mack v. Scott, 235 S.W.2d 106, 109 (Mo.App. ST.L.D. 1950).

                                                          4
                 The [c]ourt finds that there has been no evidence presented by Plaintiffs to
        support their allegations that the decision of the City Council in awarding the
        RICE NESHAP bid to [Fairbanks] rather than [CSE] was an abuse of discretion.
        It is not the role of this [c]ourt to substitute its judgment for that of a legislative
        body such as the City Council absent such an abuse. The law is clear that a public
        authority is vested with wide discretion and that its decision, when made honestly
        and in good faith, will not be interfered with by the [c]ourt, even if the [c]ourt
        disagrees or finds the decision to be erroneous. . . . The Plaintiffs have failed to
        meet their burden to show that the City’s decision was arbitrary and capricious or
        that it acted in bad faith.

This appeal followed.

        In CSE’s sole point on appeal, CSE contends the trial court erred in denying the petition

for mandamus because mandamus was an appropriate remedy to correct or control City’s

passage of an ordinance accepting Fairbanks’ bid for the RICE NESHAP project. City contends

the trial court’s denial of mandamus was proper in that City Council’s passage of the ordinance

was not arbitrary, capricious, or in bad faith, and there was no evidence of abuse or manifest

injustice.

        However, before we begin our analysis, we are obligated to determine whether CSE has

standing to bring this appeal.

                                       CSE Has No Standing

        The parties do not raise the issue of standing. Nevertheless, “[c]ourts have a duty to

determine if a party has standing prior to addressing the substantive issues of the case. For this

reason, [a challenge to] standing cannot be waived.” CACH, LLC v. Askew, 358 S.W.3d 58, 61

(Mo. banc 2012) (quoting Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002)). A party

seeking relief has the burden to establish that it has standing to maintain its claim. Borges v.

Missouri Public Entity Risk Management Fund, 358 S.W.3d 177, 181 (Mo.App. W.D. 2012).

        Whether CSE has standing is an issue of law we review de novo. Manzara v. State, 343

S.W.3d 656, 659 (Mo. banc 2011). In making this determination, we must rely on the evidence

                                                  5
adduced at trial. To that end, we “defer to the trial court’s implicit determinations of credibility,

view the evidence and permissible inferences in the light most favorable to the judgment, and

disregard all contrary evidence and inferences.” State ex rel. Lupo v. City of Wentzville, 886

S.W.2d 727, 729 (Mo.App. E.D. 1994).

       Ordinarily, “a disappointed bidder competing for a government contract does not have a

special pecuniary interest in the award of the contract to it, and therefore generally lacks standing

to challenge the award of the contract to another bidder.” Public Commc’ns Servs., Inc. v.

Simmons, 409 S.W.3d 538, 546 (Mo.App. W.D. 2013). Our Supreme Court has explained that

       [t]his is so for two reasons: (1) Because the advertisement was not an offer of a
       contract, but an offer to receive proposals for a contract, and (2) because the
       statute requiring that contracts be let to the lowest and best bidder was designed
       for the benefit and protection of the public and not the bidders.

State ex rel. Johnson v. Sevier, 98 S.W.2d 677, 679 (Mo. banc 1936) (internal quotation and

citation omitted).

       Only in select circumstances have our courts recognized a losing bidder’s standing to

challenge the award of a public contract through the extraordinary writ of mandamus: (1) where

a public entity’s bidding procedure did not permit all bidders to compete on equal terms; or

(2) where the lowest bid is rejected “fraudulently, corruptly, capriciously or without reason.”

Simmons, 409 S.W.3d at 546 (internal quotation and citation omitted).

       While we review issues of law de novo, it is apparent that the trial court was well aware

of this principle, accurately noting in its findings of fact and conclusions of law:

              33.    [A]n unsuccessful bidder has standing to challenge a contract
       award under Missouri law ‘if the bidding procedure did not permit all bidders to
       compete on equal terms.’ Metro.Exp. Servs., Inc. vs. City of Kansas City, 23
       F.3d 1367, 1371 (8th Cir. 1994).




                                                  6
                34.    An award may be challenged by a taxpayer whose taxes contribute
         to the public fund involved. E. Mo. Laborers District Council v. St. Louis
         County, 781 S.W.2d 43 (Mo. banc. 1989).

                 35.     The rejection of the lowest bid must not be made fraudulently,
         corruptly, capriciously or without reason. The officials must exercise and observe
         good faith and accord all bidders just consideration, avoiding favoritism and
         corruption. If any of these standards are violated the public, as the real, moving
         party, may bring mandamus to enforce cancellation of the contract and its award
         to the lowest responsible bidder. LaMar Const. Co. vs. Holt County, R-II School
         Dist., 542 S.W.2d 568, 571 (Mo.App. 1976).

(Quoted as written by the trial court).

         Losing-bidder standing requirements and the elements a losing bidder must prove to

show his qualification for mandamus, are one in the same. See Simmons, 409 S.W.3d at 546.

         “The law of mandamus is well settled. Mandamus is a discretionary writ, and there is no

right to have the writ issued.” State ex rel. Missouri Growth Ass’n v. State Tax Comm’n, 998

S.W.2d 786, 788 (Mo. banc 1999). Courts have reserved their right to decline to exercise this

most “drastic[,] . . . raw [exercise of] judicial power” in a court’s remedial toolbox, despite a

petitioner’s qualification, where issuing the writ would be futile or otherwise inadvisable. State

ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266-67 (Mo. banc 1980); see, e.g., State ex rel.

Hermitage R-IV Sch. Dist. v. Hickory County R-I School Dist., 558 S.W.2d 667, 670 (Mo. banc

1977).

         “To be entitled to a writ, ‘a litigant asking relief by mandamus must allege and prove that

he has a clear, unequivocal, specific right to a thing claimed.”’ U.S. Dep’t. of Veterans Affairs

v. Boresi, 396 S.W.3d 356, 359 (Mo. banc 2013) (quoting State ex rel. Office of Pub. Counsel v.

Pub. Serv. Comm’n of State, 236 S.W.3d 632, 635 (Mo. banc 2007)). The “writ of mandamus is

issued to compel the performance of a ministerial duty that one charged with the duty has refused

to perform.” Office of Pub. Counsel, 236 S.W.3d at 635 (internal quotation and citation



                                                  7
omitted). “The purpose of the writ is to execute, not adjudicate. . . . [M]andamus cannot be used

to control the judgment or discretion of a public official[,]” nor can the writ be used to control a

legislative act. See Growth Ass’n, 998 S.W.2d at 788 (internal quotation and citations omitted);

State ex rel. Bd. of Health Center Trustees of Clay County v. County Comm’n of Clay County,

896 S.W.2d 627, 631 (Mo. banc 1995). Nevertheless, “if the respondent’s actions are wrong as a

matter of law, then he or she has abused any discretion he or she may have had, and mandamus

is appropriate.” State ex rel. Valentine v. Orr, 366 S.W.3d 534, 538 (Mo. banc 2012).

                          CSE Had Fair Opportunity to Be Awarded Contract

        CSE argues that it was not given a fair opportunity to be awarded the contract for the

RICE NESHAP project.6 However, CSE failed to satisfy its burden to show that it has standing

to challenge the award of the contract to Fairbanks. Therefore, CSE fails on the merits, as well

as in its standing on this appeal.

        CSE’s argument directs us to no evidence in the record that supports its claim to standing

based on City’s alleged failure to provide a fair opportunity to be awarded the RICE NESHAP

project. The trial court could rightly find, from the evidence in the record, that City “exercise[d]

and observe[d] good faith and accord[ed] all bidders just consideration,” and that there was no

“favoritism or corruption.” Simmons, 409 S.W.3d at 546. We also find that CSE’s bid was not

rejected “fraudulently, corruptly, capriciously, or without reason.” Id. Therefore, the record

supports that CSE failed to satisfy its burden to show that it has standing to challenge the award

of the contract, and that it lacks standing to appeal the trial court’s denial of its petition for writ

of mandamus.


6
  CSE also suggests in the body of its argument that the facts in this case “raise the appearance of fraud and undue
influence,” and that the acceptance of the Fairbanks bid would impose undue or excessive costs on City taxpayers.
(Emphasis added). As neither of these claims, even if supported by the record, would provide a basis for standing
for CSE, we need not address them here. See Simmons, 409 S.W.3d at 546.

                                                         8
   The trial court’s judgment denying CSE’s petition for writ of mandamus is affirmed.


WILLIAM W. FRANCIS, JR., P.J./C.J. - OPINION AUTHOR

JEFFREY W. BATES, J. - Concurs

DANIEL E. SCOTT, J. - Concurs in Separate Concurring Opinion




                                              9
CHARLES BRANNUM                                )
and CHRIS BROWNING,                            )
                                               )
                    Plaintiffs,                )
                                               )
and                                            )
                                               )       No. SD33156
CSE ENTERPRISES, LLC,                          )
                                               )       FILED: August 27, 2014
                    Plaintiff/Appellant,       )
                                               )
      vs.                                      )
                                               )
CITY OF POPLAR BLUFF, MISSOURI,                )
                                               )
                    Defendant/Respondent.      )

                              CONCURRING OPINION

      I concur in the court’s opinion. I write only to note that the trial court expressly

found no indication that the City Council’s bid decision “amounted to an abuse of

discretion, was arbitrary and capricious, or was an exercise of bad faith,” and that the

plaintiffs failed to meet their burden of proof as to these. Since those findings and the

judgment are supported by substantial evidence, are not against the weight of the

evidence, and do not misapply or misstate the law, we must affirm.          Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

DANIEL E. SCOTT – CONCURRING OPINION AUTHOR
