Failure to follow mandatory language in Mississippi public bid laws can result in loss of a contract for a bidder and money damages against the public entity taking bids, as evidenced in the Mississippi Court of Appeals’ Opinion in W. G. Yates & Sons Constr. Co. v. City of Waveland, No. 2010-CA-01799-COA (July 17, 2012). Reynolds, Inc. was the apparent law bidder for a $9 million sewer project, but Reynolds, an Indiana company, failed to attach to its bid a copy of the Indiana statute on bids by non-resident contractors, as required by § 31-3-21(3), Miss. Code 1972. Reynolds also used superceded bid forms and, in effect, submitted a bid to furnish and install 15 inch pipe instead of 16 inch pipe.
Nevertheless, without explaining why, Waveland awarded the contract to Reynolds. Yates, the second low bidder, protested and appealed. The Circuit Court affirmed the award to Reynolds, holding that Reynolds was a “resident contractor” based on an affidavit by an officer of Layne Christensen, Reynolds’ parent company. The Circuit Court also held that Waveland was not required to reject Reynolds’ bid because of the irregularity in using the wrong bid form.
The Court of Appeals reversed, holding (1) that § 31-3-21(3)’s use of the term “shall” makes mandatory a non-resident’s attachment of its home state’s statute on non-resident bidders, and (2) that the Layne Christensen affidavit did not show that Layne had maintained a full-time office in Mississippi for two years prior to January 1, 1986, as § 31-3-21(3) required. Furthermore, Waveland had not included in its minutes any factual findings showing Reynolds’ use of the wrong bid form could be waived as an irregularity; thus, the Court of Appeals found that the Circuit Court was in error in affirming Waveland’s award of the bid to Reynolds on that basis. Finally, holding that Yates was entitled to damages because it should have been awarded the contract, the Court of Appeals remanded the case to the circuit Court for a hearing on Yates’ damages.
This case demonstrates the necessity of fully understanding and strictly complying with Mississippi public bid laws, especially in the areas of resident versus non-resident contractors and waiver of bid irregularities.