              IN THE COURT OF APPEALS OF TENNESSEE
                 AT JACKSON JANUARY 1999 SESSION



CHRIS-HILL CONSTRUCTION            )   Tennessee Claims Commission
COMPANY,                           )   Western Division, Claim 204648
                                   )


v.
        Claimant/Appellant,        )
                                   )
                                   )
                                                    FILED
                                       Appeal No. 02A01-9803-BC-
00057                                                February 4, 1999
                                   )
STATE OF TENNESSEE,                )                Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
                                   )
        Defendant/Appellee.        )


         APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                 WESTERN DIVISION AT MEMPHIS
          HONORABLE MARTHA BRASFIELD, COMMISSIONER


For the Appellant:
James W. McDonnell, Jr.
O. John Norris
WYATT, TARRANT & COMBS
6075 Poplar Avenue, Suite 650
Memphis, TN 38119-4721

For the Appellee:
John Knox Walkup
Attorney General and Reporter

Mary G. Moody
Senior Counsel

Laura T. Kidwell
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Bldg.
Nashville, TN 37243-0488



AFFIRMED

                                   WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

W. FRANK CRAWFORD, JUDGE
DAVID R. FARMER, JUDGE
                                OPINION

                                    The Facts

       This claim arises from Chris-Hill Construction Company’s (“claimant”)

participation in bidding on a Tennessee Department of Transportation (“TDOT”)

project for widening and improving the bridges and approaches over the Illinois

Central Railroad, Tarent Branch and Cane Creek on U.S. 51 in Shelby County

(“the project”). The plans and specifications for this project were prepared by

TDOT which furnished them to interested bidders, including Chris-Hill and

Dement Construction Company (“Dement”).

       Bobby Garland of the TDOT was available to prospective bidders to answer

questions about contract requirements. Danny Stoppenhagen and J. B. Hill,

representatives of Chris-Hill, contacted Garland to enquire if TDOT would enforce

a note on the plans prohibiting the placement of a crane on the existing bridge in

order to drive pilings. After checking with the TDOT Structures Division, Garland

informed them that the note would be enforced. Chris-Hill thereupon added the

costs of constructing a berm upon which to locate a platform for the crane to its

bid.

       On February 13, 1991, two days before the bids were to be opened, Dement

Vice-President Ty Capps contacted Garland and advised him that there were

conflicting provisions in the plans and specifications regarding the requirement of

seismic connections in the bearing pilings for the bridges. He requested that

TDOT issue an addendum to the contract clarifying the matter. Garland reviewed

the plans and specifications and talked with Danny Stoppenhagen about his

interpretation of them, and thereupon determined that there was a conflict in the

documents. On February 14, Garland told Capps that an addendum clarifying the

                                        2
requirements for seismic connections on the pilings would not be issued because

it was too late to issue a clarification to all interested bidders. He told Capps to bid

the job based upon his own (Capps’) interpretation of the plans. On the same day,

Stoppenhagen called Garland asking if “anything else had developed regarding the

seismic piling.” Garland advised Stoppenhagen, as he had advised Capps, that he

should bid the job based upon his own (Stoppenhagen’s) interpretation of the

documents.

      On February 15, 1991, the bids were submitted and opened. The two lowest

bidders were Dement at $1,463,378 and Chris-Hill at $1,525,529. The contract

was awarded to Dement. During the bid review process, Garland determined that

Dement would still be the lowest bidder after adding $10,200 (Dement’s estimated

price for the seismic connections in controversy) to its bid as submitted.

      After the contract was awarded, Dement and the TDOT agreed that the

contract was ambiguous about whether the use of seismic connections in the

bearing pilings for the bridges was required. As provided for in the Standard

Specifications for Road and Bridge Construction, Dement and TDOT executed a

supplemental agreement paying Dement $150 per connection for the seismic

connections, for a total of $10,200. This amount would have been paid to Chris-

Hill had it been the successful bidder.

      After construction began, Dement obtained permission from TDOT to place

a crane on the existing bridge in order to drive some of the pilings for the project,

which eliminated the need to construct a berm or base for that purpose.

      The contract required the installation of a double row of sheet piling parallel

to the Illinois Central tracks in order to maintain the stability of the tracks during

the excavation for and driving of the concrete bridge pilings. Claimant complained



                                           3
that Dement was not only using a crane on the existing bridge, but had installed

only one row of sheet piling, in violation of the contract.1 Dement was thereupon

instructed by TDOT to install the second row.

       Chris-Hill filed this claim alleging that it sustained damages as a result of

the negligence of the TDOT, in allowing Dement to use the existing bridge as the

platform from which to drive the required pilings in violation of the contract.

Claimant alleged that if the “secret variation” had been disclosed, the expense

incurred for the construction of a berm would not have been required and

consequently it would have been the low bidder. This action by TDOT is alleged

to have been in violation of T.C.A. § 9-8-307(a)(1)(I) and (N) as hereafter stated.

Claimant alleged further variations previously discovered.

       Because TDOT always prepared its own cost estimates on projects, claimant

requested production of TDOT’s estimate of the costs involved in driving the

pilings. This request was refused.

       At the close of the claimant’s case the Commissioner granted the motion of

TDOT to dismiss, holding that there was no evidence that TDOT granted

DEMENT the variance prior to the bidding and thus no negligence.

                             Issues Presented for Review

1.     Did the claimant present a prima facie case of negligence, or as
       enlarged by TDOT, what rights do the provisions of T.C.A. § § 54-5-
       114 --118 convey upon those bidding on a state highway project in
       accordance with those statutes?

2.     Does T.C.A. § 9-8-307(a)(1)(I) provide jurisdiction in the Tennessee
       Claims Commission for claims by unsuccessful bidders on Tennessee
       Department of Transportation construction projects, alleging that the
       State was negligent in allowing the successful bidder to deviate from
       the original plans and specifications?


       1
        Dement had discussed the matter with the railroad, who advised Dement that one row
was adequate. But the TDOT thought otherwise and insisted on a double row as the contract
specified.

                                            4
3.    Was the Commissioner correct in refusing to compel the State to
      Produce its construction estimate for this project?
                              Standard of Review

      The case was involuntarily dismissed pursuant to Rule 41.02(2), T.R.C.P.,

which requires a consideration of the standard prescribed in City of Columbia v.

C. F. W. Const. Co., 557 S.W.2d 734 (Tenn. 1977):

             But in the non-jury case, when a motion to dismiss is
             made at the close of plaintiff’s case under Rule 41.02(2),
             the trial judge must impartially weigh and evaluate the
             evidence in the same manner as though he were making
             findings of fact at the conclusion of all of the evidence
             for both parties, determine the facts of the case, apply
             the law to those facts, and, if the plaintiff’s case has not
             been made out by a preponderance of the evidence, a
             judgment may be rendered against the plaintiff on the
             merits, or, the trial judge, in his discretion, may decline
             to render judgment until the close of all the evidence.
             The action should be dismissed if on the facts found and
             the applicable law the plaintiff has shown no right to
             relief.

      This court’s scope of review of the Commissioner’s decision is pursuant to

Rule 13(d), T. R. A. P. The findings of the trial court in granting a Rule 41.02(2)

motion are accompanied by a presumption of correctness and, unless the

preponderance of the evidence is otherwise, those findings must be affirmed.

Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn. App. 1991).

                                     Discussion

      Chris-Hill asserted its claim for damages under T.C.A. § 9-8-307, sections

(a)(1)(I) and (N), the latter of which provides jurisdiction in the Claims

Commission for claims arising from “negligent deprivation of statutory rights.”

The statutory rights Chris-Hill seeks to enforce are those arising under T.C.A. § §

54-5-113 -- 118, which provide that the Tennessee Department of Transportation,

when making contracts in its own behalf or when acting as agent, must advertise

for bids, require that a bond accompany the bids, open the bids in the presence of


                                          5
the bidders and public, and award the contract to the best and most advantageous

bidder, reserving the right to reject all bids, a process referred to as “competitive

bidding,” State ex rel. Leech v. Wright, 622 S.W.2d 807, 814-815 (Tenn. 1981).

A consideration of the first issue requires this Court to determine what rights these

statutes confer upon participating bidders.

      It is well settled that competitive bidding statutes are enacted for the

purposes of providing bidders with a fair opportunity to compete for public

contracts and promoting the public interest by guarding against favoritism and

fraud. Marta v. Metropolitan Government of Nashville, 842 S.W.2d 611, 616-617

(Tenn. App. 1992). A participating bidder has the right to have its bid considered

honestly and fairly, competing on the same footing as all other bidders. Computer

Shoppe, Inc. v. State, 780 S.W.2d 729, 737 (Tenn. App. 1989). This requires that

all bidders be placed upon the same plane of equality and that they each bid upon

the same terms and conditions involved in all the items and parts of the contract

and that the proposal specify as to all bids the same, or substantially similar

specifications. State ex rel. Leech v. Wright, 662 S.W.2d at 815.

      The claimant had the right to prepare and submit its bid upon the same

terms, conditions, plans and specifications relied upon by all other bidders on this

project, and prior to bidding, Chris-Hill was entitled to have the same information

regarding the requirements of the contract that was given to Dement.

      In the Section (N) averments, Chris-Hill alleges that it was denied its rights

under the competitive bidding statute because, after the contract was awarded,

TDOT allowed the successful bidder, Dement, to deviate from the plans and

specifications in the actual construction of the project. Three deviations were

specifically alleged by the claimant:



                                         6
       1.      TDOT allowed Dement to place a crane on the existing
               bridge in order to drive sheet metal and concrete pilings.

       2.      TDOT entered a supplemental agreement with Dement
               providing for payment of $150 for each of sixty-eight
               seismic piling connections.

       3.      TDOT allowed Dement to use only one row of sheet
               metal pilings in a location where the plans called for two
               rows.

       It was admitted by the TDOT that after the contract was let, Dement was

given a supplemental contract for sixty-eight seismic connections at $150 each, and

that during the construction Dement was allowed to place a crane on the existing

bridge. Dement complied with TDOT’s order to use a double row of sheet piling

after it was brought to the attention of TDOT that a single row was being used.

       Chris-Hill, in its complaint, referred to these “secret deviations,” alleging

that TDOT told Dement, before bidding, that the deviations would ultimately be

allowed, and that if it had known before bidding that TDOT would ultimately

allow these deviations from the plans and specifications, its bid would have been

the lowest.

       The State argues that a claim for deprivation of rights under the competitive

bidding statutes requires Chris-Hill to prove that TDOT assured Dement that it

would be allowed to make these deviations before it submitted its bid.2

       The State argues that claimant presented no direct proof that TDOT provided

Dement with information prior to bidding that gave it any unfair advantage in the

bidding. Bobby Garland, the TDOT employee responsible for communicating with

prospective bidders about the plans and specifications, testified that he did not


       2
         The State is not liable for “. . . willful, malicious or criminal acts by State employees,
or for acts of State employees done for personal gain.” T.C.A. § 9-8-307(a)(3)(d). The
statutory scheme is clear that the liability of the State is bottomed on negligence, the failure to
use ordinary care or to adhere to an appropriate standard of care. See, Haynes v. Hamilton
County, 883 S.W.2d 606 (Tenn. 1994).

                                                 7
discuss the issues of placing a crane on the existing bridge or the number of rows

of sheet piling required with Dement prior to the submission of bids. He also

testified that, although he did discuss with Dement the issue of whether seismic

connections were required, he did not tell Dement before the bidding that it would

be allowed a supplemental agreement to pay for seismic connections.

      The claimant relies on the fact that after the contract was awarded, Dement

was allowed to deviate from the original plans and specifications, and argues that

it is reasonable from that fact that Dement had been told prior to bidding that the

deviations would be allowed.

      It is not controverted that in most TDOT highway construction projects the

contractor is allowed to deviate from the original plans and specifications in some

way, a practice known to Chris-Hill because it has been allowed such deviations

on its TDOT projects. We agree with the argument of the appellee that if the

inference proposed by the claimant established a prima facie case, the unsuccessful

bidder on most TDOT projects could make a claim that they had been deprived of

rights under the competitive bidding statutes. Such an inference is equatable to a

finding of corrupt state action, and cannot be properly considered as negligence in

order to make a 307(N) case.

      Without the inference, it is not seriously controverted that there is no proof

in the record which would support a finding that Dement Construction Company

was given an unfair advantage in the bidding on this project or that, for any reason,

Chris-Hill’s bid was not “fairly considered.” The Commissioner’s dismissal of

Chris-Hill’s claims under T.C.A. § 9-8-307(a)(1)(N) is not contrary to the

preponderance of the evidence.




                                         8
      T.C.A. § 9-8-307(a)(1)(I) provides that the Claims Commission has

jurisdiction to hear claims arising from

             Negligence in planning and programming for, inspection
             of, design of, preparation of plans for, approval of plans
             for, and construction of, public roads, streets, highways,
             or bridges and similar structures, designated by the
             Department of Transportation as being on the State
             system of highways or the State system of interstate
             highways.

      The Claims Commissioner found that jurisdiction only existed under this

section for Chris-Hill’s claim so far as it pertained to negligence in the preparation

of the plans for the project to be bid. Chris-Hill claimed that TDOT had been

negligent in the preparation of the plans because there was an ambiguity in the

plans regarding the use of seismic connections on the concrete pilings. The

Commissioner dismissed that claim on the basis that, under this court’s holding in

Computer Shoppe, Inc. v. State, supra, the State has no duty to prospective bidders

to prepare error-free plans.

      Chris-Hill also argues that Section 307(a)(1)(I) authorizes claims by

unsuccessful bidders against the State which allege negligence on the part of the

TDOT in allowing successful bidders to deviate from the original plans and

specifications. We cannot agree. The post-contract deviations were not the result

of negligence and Section 307(a)(1)(I) is not implicated.

      Finally, claimant argues that the Commission erred in not requiring the

TDOT to produce its in-house estimate of the costs of the project. The General

Assembly prohibited the publication of information which revealed the amount of

available funding for any project by Chapter 1085 of the 1990 Public Acts.

      The judgment is affirmed at the costs of the appellant.


                                        _______________________________


                                           9
                              William H. Inman, Senior Judge




CONCUR:



_______________________________
W. Frank Crawford, Judge




_______________________________
David R. Farmer, Judge




                                  10
               IN THE COURT OF APPEALS OF TENNESSEE
                  AT JACKSON JANUARY 1999 SESSION



CHRIS-HILL CONSTRUCTION                 )      Tennessee Claims Commission
COMPANY,                                )      Western Division, Claim 204648
                                        )
        Claimant/Appellant,             )
                                        )
v.                                      )      Appeal No. 02A01-9803-BC-00057
                                        )
STATE OF TENNESSEE,                     )
                                        )
        Defendant/Appellee.             )




______________________________________________________________

                               JUDGMENT
______________________________________________________________

        This cause came on to be regularly heard and considered by this Court, and

for the reasons stated in the Opinion of this Court filed this date, it is ORDERED

that:

        1. The judgment of the trial court is affirmed.

        2.   Costs of this appeal are taxed against the appellant, Chris-Hill

Construction Company, for which execution may issue if necessary.


                                               ____________________________
                                               INMAN, S.J.
__________________________
CRAWFORD, J.


____________________________
FARMER, J.
