temporary restraining order - Finance & Commerce

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Minn. Stat. § 471.345 subd. 3. As an alternative to sealed bidding, municipalities may award contracts to the vendor that offers the best value determined through the competitive process described in Minn. Stat. § 16C.28. See Minn. Stat. § 471.345 subd. 3a. It is debatable whether the design-build delivery method is allowed under ‘best value’ procurement, but ‘best value’ procurement certainly could be applied to the design-build method if expressly authorized by statute. See Dean B. Thomson, et al., A Critique of Best Value Contracting in Minnesota, 34 Wm. Mitchell L. Rev. 27 (2007). The new Capitol Projects Grant statute expressly authorizes the use of design-build procurement for grant recipients. Minn. Stat. §116J.433, Subd. 3. Therefore, ‘best value’ procurement can be used to solicit design-build proposals for the stadium Project. Regardless of whether sealed bidding, in which the contract is awarded to the lowest responsive and responsible bidder, or best value procurement is used, the Uniform Municipal Contracting Law makes it clear that municipalities must use a competitive procurement process before awarding contracts in excess of $100,000. The Uniform Municipal Contracting Law requires competition “in the manner and subject to the requirements of the law governing contracts by the particular municipality or class thereof.” See Minn. Stat. § 471.345 subd. 3. Statutory cities have the option to use either sealed bidding or best value procurement for contracts valued at more than $100,000. See Minn. Stat. § 412.311. If a statutory city elects to use sealed bidding, it must publish notice of bidding at least once is an official newspaper at least ten days before the due date for bid submission. See Minn. Stat. § 412.311 subd. 1. If the statutory city elects to use the best value method, it must follow the procedures described in Minn. Stat. § 16C.28. See Minn. Stat. § 412.311 subd. 2. The City has even more stringent self-imposed procurement requirements. Its ordinances require sealed bidding on contracts valued at more than $50,000. See St. Paul Ordinance 82.02 (Wieland N:\PL\85155\85155-001\1607234.docx 8
Aff. Exhibit H). The legislature deliberately mandated use of competitive procurement processes to safeguard the public’s funds. The basic purpose of competitive bidding is to give the public the benefit of the lowest obtainable price from a responsible contractor. As a part of the fulfillment of that purpose, the discretion of public officials is limited or removed so as to avoid fraud, favoritism, improvidence, and extravagance. Foley Bros., Inc. v. Marshall, 123 N.W.2d 387, 391 (Minn. 1963). Those statutory safeguards are enforced by the courts. See Griswold v. Ramsey County, 65 N.W.2d 647, 651-52 (Minn. 1954) (“Irrespective of what lawful method is adopted or used in the letting of public contracts, it is for the courts to determine whether officials in the exercise of their discretion have applied the method used in an arbitrary, capricious, or unreasonable manner.”). Judge Rosenbaum aptly described the lens through which public procurement cases should be viewed by the courts. It is imperative that public bidding procedures be conducted in a carefully controlled and wholly open manner. To this end the legislature of the State of Minnesota has constructed and enacted into law a detailed code regulating public bidding procedures. The case law strongly supports those procedures. Even the slightest deviations from prescribed form are viewed with a most jaundiced eye. United Tech. Commc’n. Co. v. Washington County Bd., 624 F. Supp. 185, 188 (D. Minn. 1985) (internal citations omitted). b. The City was not authorized to deviate from competitive procurement requirements. The City has taken the indefensible position that the bonding statute funding the Capital Project Grants authorized the City to award a multi-million dollar contract to its favored contractor without engaging in any type of competitive process. See Wieland Aff. at Exhibits E, F, and G. It does not. The bonding statute, Session Laws 2012 Chapter 293 (“the Bonding Statute”), empowers Capital Project Grant recipients to do certain things. It empowered the City to “employ or contract with persons, firms, or corporations to perform one or more or all of the functions of N:\PL\85155\85155-001\1607234.docx 9
Page 1 and 2: STATE OF MINNESOTA DISTRICT COURT C
Page 3 and 4: Stat. § 116J.433, governing those
Page 5 and 6: On September 13, 2012, the Minnesot
Page 7: consideration and the other three f
Page 11 and 12: perform one or more or all of the f
Page 13 and 14: was not authorized to give a multi-
Page 15 and 16: City failed to test that assumption
Page 17 and 18: “proper challenges to the bid-let
Page 19 and 20: St. Paul chose to violate well-esta

temporary restraining order - Finance & Commerce

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