Appeal from the District Court of Sublette County. The Honorable Marvin L. Tyler, Judge.
Representing Appellant: Katherine McKay of Hooper Law Offices, PC, Lander, WY.
Representing Appellee: Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, WY.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] This case comes before the Court for a second time. The material facts remain generally unchanged and undisputed. Appellant, Western Wyoming Construction Co., Inc. (WWC), submitted a bid for a highway project in Sublette County, Wyoming and was the low bidder. The Board of County Commissioners of Sublette County (Commissioners), however, awarded the contract to another company, R.S. Bennett Construction Co., Inc. (R.S. Bennett). In the prior appeal, WWC challenged the district court's award of summary judgment in favor of the Commissioners, arguing that the Commissioners' award of the contract was an abuse of discretion under Wyo. Stat. Ann. § 16-6-102(a). W. Wyo. Constr. Co. v. Bd. of County Comm'rs, 2013 WY 63, 301 P.3d 512 (Wyo. 2013) ( WWC I ). This Court held Wyo. Stat. Ann. § 16-6-102(a) inapplicable and reversed and remanded the case for further factual development to determine if any statute governed the award of the contract and to determine whether the award was appropriate. Id.
[¶2] On remand the district court found the Commissioners' award to be within their discretion and appropriate holding generally in favor of the Commissioners. WWC appeals and we again reverse and remand for further proceedings consistent with this opinion.
[¶3] WWC presents the issue for this Court's consideration as follows:
Whether it is an abuse of discretion for a county to refuse to award a public works contract to the lowest responsible bidder, where the project has been let for competitive bid, on the basis that the next lowest bid is not significantly higher and was submitted by a bidder from the same county.
The Commissioners restate this issue as follows:
Was the trial court's determination that the Commissioners' decision to award the contract to the second lowest bidder, done in good faith and within their discretion, clearly erroneous as a matter of law?
[¶4] The Commissioners also raise issues concerning the validity of WWC's additional claims of promissory estoppel, equitable estoppel, and negligent misrepresentation, as well as WWC's ability to raise these additional claims. However, these issues are not properly before this Court and, accordingly, we decline to make a ruling at this time.
[¶5] Much of the factual background of this case is described in WWC I. However, in order to adequately present the issues before this Court a certain amount of repetition is unavoidable.
[¶6] On September 6, 2011, Sublette County issued an invitation for bids for a reconstruction project on Horse Creek Road (the Project) located in Sublette County. WWC, a contractor based out of Lander, Wyoming, submitted the low bid of $4,232,854.50. R.S. Bennett, a firm based out of Sublette County, submitted the next lowest bid of $4,241,074.10. Despite its bid being approximately $8,000 higher, the Commissioners awarded the contract to R.S. Bennett.
[¶7] In October of 2011 WWC filed a complaint in the district court alleging that by not entering into the contract with WWC, the Commissioners violated Wyo. Stat. Ann. § 16-6-102(a) and that the Commissioners were obligated to enter into the contract with WWC. WWC's complaint included claims for injunction, specific performance, declaratory judgment, and a finding of a breach of the duty of good faith and fair dealing. In a series of rulings and without a trial the district court found in favor of the Commissioners on all claims and concluded that the Commissioners made a legitimate executive decision to award the contract to a company other than.
[¶8] On appeal to this Court we held that § 16-6-102 had no application in the context of two resident contractors. " Rather, [Wyo. Stat. Ann. § 16-6-102] applies only in the context of competing bids from a resident and non-resident contractor." WWC I, P 14, 301 P.3d at 515. Due to a lack of evidence showing whether any other statute applied to the award of the contract, we were unable to determine whether the bid award was appropriate and we remanded the case for a " presentation of evidence and a determination of whether the award was appropriate." Id., P 20, 301 P.3d at 517.
[¶9] The Invitation for Bids and Instructions to Bidders (bid documents) provided by Sublette County contained provisions governing the bidding and bid selection process. Specifically, section 17 of the Instructions to Bidders entitled AWARD OF CONTRACT provided the instructions and parameters for the awarding of the contract. In pertinent part, Section 17 states:
17.1 OWNER reserves the right to reject any and all bids, to waive any and all informalities and to negotiate contract terms with the successful BIDDER, and the right to disregard all nonconforming, nonresponsive, unbalanced or conditional bids. Also, OWNER reserves the right to reject the bid of any BIDDER if OWNER believes that it would not be in the best interest of the project to make an award to that BIDDER, whether because the Bid is not responsive or the BIDDER is unqualified or of doubtful financial ability or fails to meet any other permitted standard or criteria established by OWNER. Discrepancies in the multiplication of units of Work and unit prices will be ...