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:

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 02:45pm

ND cite:

2008 ND 116

NW cite:

751 N.W.2d 191

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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:

1	04/24/2006	NOTICE OF APPEAL: 04/21/2006
2	04/24/2006	ORDER FOR TRANSCRIPT: 04/21/2006
3	05/17/2006	RECORD ON APPEAL - (Vols 1 & 2) includes exhibits and tra of depo dtd 10-17-05;
4	05/17/2006	not rec'd were entry nos. 70-72 (Steno notes)
5	05/22/2006	MOTION for admission pro hac vice of Dean B. Thomson and Aaron A. Dean (letter dated May 18, 2006)
6	05/22/2006	Affidavit of Aaron A. Dean in Support of Motion for Admission of Counsel Pro Hac Vice
7	05/22/2006	Affidavit of Dean B. Thomson in Support of Motion for Admission of Counsel Pro Hac Vice
8	05/22/2006	ACTION BY CLERK (appearance of Aaron A. Dean and Dean B. Thomson as pro hac vice approved). Granted
9	05/22/2006	Affidavit of Service of Motion and Affidavits by mail
10	05/22/2006	MOTION FOR in-state counsel to be excused from oral argument (May 18, 2006 letter)
11	06/05/2006	MOT. EXT/TIME TRANSCRIPT
12	06/05/2006	ACTION BY TRIAL COURT. Granted: 07/20/2006
13	07/18/2006	MOT. EXT/TIME TRANSCRIPT (McLean)
14	07/27/2006	ACTION BY CLERK (MTR). Granted: 08/14/2006
15	08/14/2006	DISK of tra dtd 11-1 & 2-05 (e-mailed)
16	08/23/2006	TRANSCRIPT DATED November 1 and 2, 2005 (2 vols)
17	08/30/2006	Corrected Affidavit of Service for tra
18	09/08/2006	Request to remand to trial court (ltr dtd 9-8-06 from Dean Thomson) (e-filed)
19	09/08/2006	E-FILED MOTION (Req/Remand)
20	09/12/2006	ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
21	09/13/2006	ORDER OF REMAND
22	09/13/2006	Order of Temporary Remand Mailed to Parties
23	09/18/2006	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
24	12/04/2006	Supplemental Clerk's Certificate dated 11-30-06 (Entry No. 140)
25	02/01/2007	Reset due date for Appellant's Brief after remand
26	02/01/2007	ACTION BY CLERK (MAT/reset due date after remand). Granted
27	02/06/2007	Letter dated February 6, 2007, from Baukol Builders, that Remand was not final
28	02/09/2007	Letter dated 2/9/07 from trial court that the Order Denying Plaintiff's Motion for New Trial and
29	02/09/2007	and Granting Plaintiff's Request for Limited Discover could be misinterpreted
30	02/14/2007	MOTION FOR REMAND (sua sponte)
31	02/14/2007	ACTION BY SUPREME COURT (sua sponte). Granted
32	02/14/2007	ORDER OF REMAND
33	02/16/2007	Copy of trial court's Corrected Order Denying Plaintiff's Motion for New Trial and Granting
34	02/16/2007	Plaintiff's Request for Limited Discovery
35	02/20/2007	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
36	02/28/2007	MOTION FOR RELIEF FROM COURT'S BRIEFING DEADLINE & FOR TRMPORARY REMAND AND BRIEF IN SUPPORT
37	03/01/2007	ACTION BY CHIEF JUSTICE (Motion for Remand). Granted
38	03/01/2007	ORDER OF REMAND
39	03/02/2007	Order Mailed to Parties
40	03/05/2007	Copy of payment for Dean Thomson's annual fee for pro hac vice; continued appearance authorized
41	03/05/2007	NO ACTION TAKEN (Motion for in-state counsel to be excused from oral argument)
42	07/13/2007	RECORD ON APPEAL Refiled after Remand (3 Volumes) including separate transcripts and exhibits.
43	07/13/2007	Not sent with the record were Nos. 70, 71 & 72 (Steno Notes)
44	07/30/2007	Supplemental Clerk's Certificate dated 7-25-07 (Entry Nos. 170-173)
45	07/30/2007	Second NOA filed in trial court on 7-25-07
46	07/30/2007	ORDER FOR TRANSCRIPT: 07/25/2007
47	07/30/2007	Reset due date for 4-17-07 Transcript
48	07/30/2007	Reset due date for 4-17-07 transcript due to delay that has already happened. Granted: 08/27/2007
49	08/01/2007	Clerk's Supplemental Certificate of Record dated July 31, 2007 (Entry Nos. 174-176).
50	08/21/2007	Transcript dated April 17, 2007
51	08/23/2007	DISK - TRA (4/17/07)
52	08/23/2007	Certificate of Service of transcript dated 4/17/07
53	09/04/2007	MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF FOR ASSOCIATED GENERAL CONTRACTORS OF NORTH DAKOTA
54	09/05/2007	ANNOUNCED DISQUALIFICATION: Kapsner
55	09/29/2007	APPELLANT BRIEF
56	09/29/2007	APPELLANT APPENDIX
57	10/15/2007	DISK of atb
58	10/15/2007	Received 8 cc each of tr. ct register, NOA, Judgments, and Order for ATA
59	10/16/2007	ACTION BY CHIEF JUSTICE (Mot/File/ACB/Associated General Contractors). Granted
60	10/16/2007	AMICUS CURIAE BRIEF (Associated General Contractors of ND)
61	10/16/2007	DISK - acb (Assoicated General Contractors of ND)
62	10/31/2007	APPELLEE BRIEF (e-filed)
63	10/31/2007	E-FILED BRIEF (AEB)
64	10/31/2007	APPELLEE APPENDIX (e-filed)
65	10/31/2007	E-FILED APPENDIX (AEA)
66	10/31/2007	Certificate of Service by E-Mail of AEB & AEA on Mr. Zimney & Mr. Dean
67	11/01/2007	Received $25 surcharge for AEB (Receipt #17896)
68	11/01/2007	Certificate of Service by E-Mail of AEB on Mr. Petrik
69	10/31/2007	Received 7 copies of AEB from Central Duplicating
70	10/31/2007	Received 6 copies of AEA from Central Duplicating
71	11/14/2007	REPLY BRIEF (e-filed)
72	11/14/2007	E-FILED BRIEF (RYB)
73	11/21/2007	Received copies of RYB from Central Duplicating
74	11/23/2007	SITTING WITH THE COURT: Schmalenberger, Allan L.
75	12/20/2007	APPEARANCES: Aaron A. Dean; Douglas A. Christensen
76	12/20/2007	ARGUED: Dean; Christensen
77	12/20/2007	ORAL ARGUMENT WEBCAST
78	06/09/2008	DISPOSITION: AFFIRMED
79	06/09/2008	UNANIMOUS OPINION: Sandstrom
80	06/09/2008	Costs on appeal taxed in favor of appellee
81	06/09/2008	Judgment e-mailed to Parties
82	07/01/2008	MANDATE
83	07/10/2008	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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