                            IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2001-CC-01554-SCT

LANDMARK STRUCTURES, INC.
v.
THE CITY COUNCIL FOR THE CITY OF MERIDIAN, THE CITY OF MERIDIAN AND
CALDWELL TANKS, INC.



DATE OF JUDGMENT:                                9/12/2001
TRIAL JUDGE:                                     HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:                       LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                         JOHN F. HAWKINS

                                                 JOHN L. MAXEY, II
ATTORNEYS FOR APPELLEES:                         WILLIAM C. HAMMACK

                                                 RONNIE L. WALTON

                                                 WALKER (BILL) JONES

                                                 HEATHER L. SAUM
NATURE OF THE CASE:                              CIVIL - OTHER
DISPOSITION:                                     AFFIRMED-9/19/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                  10/10/2002



     EN BANC.

     McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1. Landmark Structures, Inc. filed a bill of exceptions to appeal the City of Meridian's decision to award a
public construction contract to Caldwell Tanks, Inc. The Lauderdale County Circuit Court affirmed the city
council's decision. Landmark contests the contract award alleging that Caldwell materially deviated from the
bid specifications by using four feet forms instead of the designated six to twelve feet forms and, therefore,
the city council's award was arbitrary and capricious and not supported by substantial evidence. Landmark
also contends that since Caldwell did not comply with the bid specifications, it was a nonresponsive bidder,
leaving Landmark as the lowest responsive bidder.

¶2. Upon review of the record, we find that Landmark submitted no evidence to show that Caldwell's bid
effected a material change in time, price or work or that Landmark and the other bidders were put at an
unfair economic disadvantage. Therefore, the city council was not arbitrary or capricious in its decision to
award the contract to Caldwell, and we affirm the circuit court.

                                                    FACTS

¶3. The City of Meridian solicited sealed bids for the construction of a one million gallon elevated water
tank, the North Meridian Elevated Water Tank, pursuant to Miss. Code Ann. § 31-7-13 (Supp. 2002).
The City employed Malcolm-Pirnie, Inc. as the project engineer who prepared bid specifications.

¶4. A project manual, which included the bid specifications, was distributed to prospective bidders. The
manual's instructions note that the "[owner] reserves the right to reject any or all Bids . . . [and] to waive
any informality not involving price, time or changes in the Work." Further, the contract was to be awarded
"to the lowest responsive and responsible Bidder who has neither been disqualified nor rejected . . . ." The
manual also states that the "concrete and formwork requirements . . . shall be strictly enforced to ensure
concrete of the highest practicable structural and architectural standards." It specifies that prefabricated
form segments shall be used and that the "[c]oncrete pour height shall be a minimum of 6 ft. and a maximum
of 12 ft."

¶5. Four sealed bids were submitted including Caldwell's at $1,261,000 and Landmark's at $1,310,000.
The other two bids were higher. After the bids were opened, the project engineer noted that Caldwell
proposed to use composite tanks that had been constructed in 1996 and 1997 while the project specified
tanks constructed five years or more prior to the bidding. He also noted that Caldwell proposed to use four
feet forms instead of six to twelve feet forms as specified in the project manual, but recommended in writing
that the City award the contract to Caldwell anyway as "the lowest responsive and responsible bidder."

¶6. In a letter to the project engineer, Landmark's attorney opined that Caldwell did not comply with the bid
specifications concerning the forms to be used, and therefore, the bid was not responsive. Upon written
request by Landmark's president, Eric Lamon, the matter was added to the city council's agenda for the
same time the contract award was to be considered. The city council members reviewed the
correspondence before the meeting.

¶7. At the meeting, Landmark's president, Caldwell's president, the city public works director, and a
representative of the project engineer all spoke to the city council. Lamon submitted that Landmark could
have also reduced its costs if it had known it could take exceptions to the specifications. However, Lamon
gave no specifics to expound upon or evidence to support this conclusion. The public works director stated
that the structural strength of the water tank was not compromised by the different size forms and that the
tank would still have to be constructed within the tolerances set forth in the specifications regardless of the
size of the forms. The project engineer's representative testified that the deviation from the specifications did
not involve time, price and changes in the work because there was still going to be a one million gallon tank
that was not significantly altered. He also stated that Caldwell's forms would merely be a change to
aesthetics, not to the structure of the tank.

¶8. The city council voted unanimously to accept Caldwell's bid and award it the contract. Landmark filed a
notice of appeal and bill of exceptions with the circuit court which in turn affirmed the city council's contract
award to Caldwell. Landmark timely appealed to this Court. The circuit court allowed Caldwell to intervene
on appeal.

                                                DISCUSSION
      I. WHETHER THE CITY COUNCIL'S DECISION TO AWARD THE CONTRACT TO
      CALDWELL WAS ARBITRARY OR CAPRICIOUS AND WHETHER IT WAS
      SUPPORTED BY SUBSTANTIAL EVIDENCE.

¶9. On appeal, Landmark argues that Caldwell unilaterally deviated from the established bid specifications
by using four feet forms instead of six to twelve feet forms and thereby tainted the competitive public
bidding process. Landmark asserts that Caldwell gained an unfair economic advantage in this deviation and
that the city council's vote to award the contract to Caldwell was not based on substantial evidence.
Landmark raised the issue in letters to the different parties and at the meeting before the city council.

¶10. The city council argues that the contract reserved for it the right to waive any "informalities" not
affecting time, price or changes in the work, and that the deviations from the specifications were just that,
informalities. At the hearing, the city council focused on and ruled on whether the deviation from the
specifications was substantial so as to make Caldwell a nonresponsive bidder. It concluded that the
deviation was not substantial, would not affect time or price and would not significantly affect the structure
of the tank.

¶11. In considering this matter, we are reminded that we apply the same standard of review to a circuit
court's review of a municipal authority's decision as we apply to administrative agencies and boards. See
Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (Miss. 2000)
(citing Barnes v. Bd. of Supervisors, 553 So.2d 508, 511 (Miss.1989)). The reviewing court is to
determine if the judgment of an administrative agency "(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." URCCC 5.03. See also Quality
Farms, 767 So.2d at 1010 (citing Bd. of Law Enforcement Officers Standards & Training v.
Butler, 672 So.2d 1196, 1199 (Miss. 1996)).

¶12. We have noted that

      [t]he purpose of provisions requiring that contracts with public authorities be let only after competitive
      bidding [is] to secure economy in the construction of public works and the expenditures of public
      funds for materials and supplies needed by public bodies; to protect the public from collusive
      contracts; to prevent favoritism, fraud, extravagance, and improvidence in the procurement of these
      things for the use of the state and its local self-governing subdivisions; and to promote actual, honest,
      and effective competition to the end that each proposal or bid received and considered for the
      construction of a public improvement, the supplying of materials for public use, etc., may be in
      competition with all other bids upon the same basis, so that all such public contracts may be secured
      at the lowest cost to taxpayers.

Hemphill Constr. Co. v. City of Laurel, 760 So.2d 720, 724 (Miss. 2000)(citations omitted). Further,
we have strictly construed the procedural requirements for bidding on public contracts as set forth in Miss.
Code Ann. § 31-3-21 (2000). See City of Durant v. Laws Constr. Co., 721 So.2d 598 (Miss. 1998).
We recognize the principles of strict construction stressed in City of Durant but note that it deals with a
specific statute that is not at issue in the case sub judice.

¶13. After reviewing the record, we find that the city council specifically reserved the right to waive any
informality not involving price, time, or changes in work and that the city council found Caldwell's deviation
to fall within the definition of informality as noted in the project manual. This is the information upon which
the city council based its decision, and the record supports that decision.

¶14. At the meeting, Landmark's president testified that the deviations from the bid specifications could
affect the bid price. However, no testimony or evidence was offered to support or rebut this contention.
Also, Landmark did not offer any evidence to indicate specifically how the prices would be affected. There
is nothing in the record before the city council that evinces an economic advantage Caldwell may have had
over the other bidders. Moreover, there was testimony at the hearing that the use of different size forms is a
mere construction technique or methodology and would not affect the structural integrity of the water tower.
The public works director and the project engineer testified that the structural integrity would not be in
danger. Also, the portion of the manual that mandates strict enforcement of the concrete and form work
requirements specifically states that the purpose is "to ensure concrete of the highest practicable structural
and architectural standards." The testimony offered at the meeting undeniably shows that the structure of the
water tank will not be affected by the use of four feet forms as opposed to six to twelve feet forms.

¶15. Landmark did not rebut any of the testimony offered at the meeting. Further, Landmark admits in its
brief that there was no evidence presented that Caldwell was at an economic advantage, and that
Landmark and the other bidders were at an economic disadvantage. Landmark raised the issue; and
therefore, the burden was on it to prove what it contested. The burden was not on Caldwell.

¶16. The city council discussed and heard testimony as to whether the use of different size forms was a
material deviation and determined that it was a mere informality that did not affect price, time or a change in
the work. The decision to award the contract to Caldwell was not arbitrary or capricious, and it was based
on substantial evidence.

      II. WHETHER CALDWELL WAS THE LOWEST RESPONSIVE BIDDER.

¶17. Landmark urges this Court to find that since Caldwell deviated from the form specifications it was a
nonresponsive bidder and not the lowest bidder. Therefore, Landmark argues, Caldwell should not have
been considered for the award pursuant to Miss. Code Ann. § 31-7-13 (d)(i). The preceding discussion
renders this assignment of error moot.

                                               CONCLUSION

¶18. We find no evidence in the record to support Landmark's contention that Caldwell compromised the
bidding process in this case or that Caldwell was at an unfair economic advantage. We note that Hemphill
and City of Durant are still alive and well, and our holding today does not contradict the holdings in those
cases. Accordingly, we affirm the circuit court's judgment affirming the city council's award of the contract
to Caldwell.

¶19. AFFIRMED.

      SMITH, P.J., WALLER, COBB, DIAZ, CARLSON, AND GRAVES, JJ., CONCUR.
      PITTMAN, C.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN
      OPINION.
