Baukol Builders v. County of Grand Forks

20060120 Baukol Builders, Inc., Plaintiff and Appellant
v.
County of Grand Forks, Defendant and Appellee

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lee A. Christofferson
Nature of Action: Contracts
Counsel:
Appellant: Aaron Anthony Dean
Appellant: Zimney Foster P.C.
Appellee: Pearson Christensen & Clapp, PLLP
Amicus curiae: Vogel Law Firm
Term: 12/2007   Argument: 12/20/2007  2:45pm
ND cite: 2008 ND 116
NW cite: 751 N.W.2d 191

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
ISSUE 1: Whether the trial court erred in dismissing Baukol's claim that the County's decision not to award Bid Package #2 to the lowest responsible bidder violated N.D.C.C.  48-01.1-02's requirement that "A governing body shall award a contract for the construction of a public improvement under this chapter to the lowest responsible bidder"?
ISSUE 2: Whether the trial court erred in concluding that the County's actions did not violate the MiniMart decision of this Court despite the fact that the County used unstated criteria to make a decision to award a multi-million dollar public construction contract?
ISSUE 3: Whether the trial court erred in failing to conclude that the County illegally reserved the right to negotiate with bidders after the bid opening where the County's bid specification clearly reserved this right to the County?
ISSUE 4: Whether the trial court erred in failing to conclude that the County's use of unstated criteria after bid opening violated Danzl v. City of Bismarck?
ISSUE 5: Whether, if the County had discretion, the trial court erred in concluding that the County did not abuse its discretion when awarding a multi-million dollar public construction contract to the second low bidder?
ISSUE 6: Whether the trial court erred by failing to enjoin contract award when the County admits it did not comply with the law regarding public advertisement for bids?
ISSUE 7: Whether the trial court erred when it denied Baukol's motions for a new trial, amended findings, and an award of attorneys' fees?

Appellee's Statement of the Issues:
I. Whether the trial court erred in dismissing Baukol's claim that the County's decision to award Bid package #2 to Construction Engineers instead of Baukol violated the competitive bidding provisions of N.D.C.C. Chapter 48-01.1? III. Whether the trial court erred in failing to conclude that the County illegally reserved the right to negotiate with bidders after the bid opening?
IV. Whether the trial court erred in failing to conclude that the County used hidden bid criteria in violation of Danzl v. City of Bismarck?
V. Whether the trial court erred in concluding the County did not abuse its discretion in awarding the contract for Bid Package #2 to Construction Engineers, the second lowest bidder?
VI. Whether the trial court erred by refusing to enjoin the County's contract award to Construction Engineers when the County did not strictly comply with the law regarding public advertisement for bids because Baukol was not harmed by the County's noncompliance?
VII. Whether the trial court erred in denying Baukol's motions for a new trial, amended findings, and an award of attorney's fees?

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Docket entries:
104/24/2006 NOTICE OF APPEAL: 04/21/2006
204/24/2006 ORDER FOR TRANSCRIPT: 04/21/2006
305/17/2006 RECORD ON APPEAL - (Vols 1 & 2) includes exhibits and tra of depo dtd 10-17-05;
405/17/2006 not rec'd were entry nos. 70-72 (Steno notes)
505/22/2006 MOTION for admission pro hac vice of Dean B. Thomson and Aaron A. Dean (letter dated May 18, 2006)
605/22/2006 Affidavit of Aaron A. Dean in Support of Motion for Admission of Counsel Pro Hac Vice
705/22/2006 Affidavit of Dean B. Thomson in Support of Motion for Admission of Counsel Pro Hac Vice
805/22/2006 ACTION BY CLERK (appearance of Aaron A. Dean and Dean B. Thomson as pro hac vice approved). Granted
905/22/2006 Affidavit of Service of Motion and Affidavits by mail
1005/22/2006 MOTION FOR in-state counsel to be excused from oral argument (May 18, 2006 letter)
1106/05/2006 MOT. EXT/TIME TRANSCRIPT
1206/05/2006 ACTION BY TRIAL COURT. Granted: 07/20/2006
1307/18/2006 MOT. EXT/TIME TRANSCRIPT (McLean)
1407/27/2006 ACTION BY CLERK (MTR). Granted: 08/14/2006
1508/14/2006 DISK of tra dtd 11-1 & 2-05 (e-mailed)
1608/23/2006 TRANSCRIPT DATED November 1 and 2, 2005 (2 vols)
1708/30/2006 Corrected Affidavit of Service for tra
1809/08/2006 Request to remand to trial court (ltr dtd 9-8-06 from Dean Thomson) (e-filed)
1909/08/2006 E-FILED MOTION (Req/Remand)
2009/12/2006 ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
2109/13/2006 ORDER OF REMAND
2209/13/2006 Order of Temporary Remand Mailed to Parties
2309/18/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2412/04/2006 Supplemental Clerk's Certificate dated 11-30-06 (Entry No. 140)
2502/01/2007 Reset due date for Appellant's Brief after remand
2602/01/2007 ACTION BY CLERK (MAT/reset due date after remand). Granted
2702/06/2007 Letter dated February 6, 2007, from Baukol Builders, that Remand was not final
2802/09/2007 Letter dated 2/9/07 from trial court that the Order Denying Plaintiff's Motion for New Trial and
2902/09/2007 and Granting Plaintiff's Request for Limited Discover could be misinterpreted
3002/14/2007 MOTION FOR REMAND (sua sponte)
3102/14/2007 ACTION BY SUPREME COURT (sua sponte). Granted
3202/14/2007 ORDER OF REMAND
3302/16/2007 Copy of trial court's Corrected Order Denying Plaintiff's Motion for New Trial and Granting
3402/16/2007 Plaintiff's Request for Limited Discovery
3502/20/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3602/28/2007 MOTION FOR RELIEF FROM COURT'S BRIEFING DEADLINE & FOR TRMPORARY REMAND AND BRIEF IN SUPPORT
3703/01/2007 ACTION BY CHIEF JUSTICE (Motion for Remand). Granted
3803/01/2007 ORDER OF REMAND
3903/02/2007 Order Mailed to Parties
4003/05/2007 Copy of payment for Dean Thomson's annual fee for pro hac vice; continued appearance authorized
4103/05/2007 NO ACTION TAKEN (Motion for in-state counsel to be excused from oral argument)
4207/13/2007 RECORD ON APPEAL Refiled after Remand (3 Volumes) including separate transcripts and exhibits.
4307/13/2007 Not sent with the record were Nos. 70, 71 & 72 (Steno Notes)
4407/30/2007 Supplemental Clerk's Certificate dated 7-25-07 (Entry Nos. 170-173)
4507/30/2007 Second NOA filed in trial court on 7-25-07
4607/30/2007 ORDER FOR TRANSCRIPT: 07/25/2007
4707/30/2007 Reset due date for 4-17-07 Transcript
4807/30/2007 Reset due date for 4-17-07 transcript due to delay that has already happened. Granted: 08/27/2007
4908/01/2007 Clerk's Supplemental Certificate of Record dated July 31, 2007 (Entry Nos. 174-176).
5008/21/2007 Transcript dated April 17, 2007
5108/23/2007 DISK - TRA (4/17/07)
5208/23/2007 Certificate of Service of transcript dated 4/17/07
5309/04/2007 MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF FOR ASSOCIATED GENERAL CONTRACTORS OF NORTH DAKOTA
5409/05/2007 ANNOUNCED DISQUALIFICATION: Kapsner
5509/29/2007 APPELLANT BRIEF
5609/29/2007 APPELLANT APPENDIX
5710/15/2007 DISK of atb
5810/15/2007 Received 8 cc each of tr. ct register, NOA, Judgments, and Order for ATA
5910/16/2007 ACTION BY CHIEF JUSTICE (Mot/File/ACB/Associated General Contractors). Granted
6010/16/2007 AMICUS CURIAE BRIEF (Associated General Contractors of ND)
6110/16/2007 DISK - acb (Assoicated General Contractors of ND)
6210/31/2007 APPELLEE BRIEF (e-filed)
6310/31/2007 E-FILED BRIEF (AEB)
6410/31/2007 APPELLEE APPENDIX (e-filed)
6510/31/2007 E-FILED APPENDIX (AEA)
6610/31/2007 Certificate of Service by E-Mail of AEB & AEA on Mr. Zimney & Mr. Dean
6711/01/2007 Received $25 surcharge for AEB (Receipt #17896)
6811/01/2007 Certificate of Service by E-Mail of AEB on Mr. Petrik
6910/31/2007 Received 7 copies of AEB from Central Duplicating
7010/31/2007 Received 6 copies of AEA from Central Duplicating
7111/14/2007 REPLY BRIEF (e-filed)
7211/14/2007 E-FILED BRIEF (RYB)
7311/21/2007 Received copies of RYB from Central Duplicating
7411/23/2007 SITTING WITH THE COURT: Schmalenberger, Allan L.
7512/20/2007 APPEARANCES: Aaron A. Dean; Douglas A. Christensen
7612/20/2007 ARGUED: Dean; Christensen
7712/20/2007 ORAL ARGUMENT WEBCAST
7806/09/2008 DISPOSITION: AFFIRMED
7906/09/2008 UNANIMOUS OPINION: Sandstrom
8006/09/2008 Costs on appeal taxed in favor of appellee
8106/09/2008 Judgment e-mailed to Parties
8207/01/2008 MANDATE
8307/10/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 12/18/2014