Opinion
No. 42164.
February 5, 1962.
1. Board of Supervisors — contracts — "lowest responsible bidder" — discretion vested in Board.
Even though requirement that county contract shall be awarded to lowest responsible bidder is mandatory and not merely directory, agency through which county lets such contracts has broad discretionary powers in determining responsibility of bidder.
2. Board of Supervisors — contracts — "lowest responsible bidder" — Board justified in rejecting unsigned bids.
County board of supervisors, which was advised by Attorney General that it would not be authorized to accept unsigned bid for furnishing office supplies, was justified in finding that neither of two bidders, whose bids were not signed in writing, was lowest responsible bidder. Secs. 8978, 8983, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Holmes County; ARTHUR B. CLARK, J.
William L. Higgs, Jackson, for appellant.
I. The Court below was in error in holding that a typewritten signature was not a "signature". Edward Thompson Co. v. Foy, 115 Miss. 845, 76 So. 685; Misso v. National Bank of Commerce, 231 Miss. 249, 95 So.2d 124; Rhyne v. Gammil, 215 Miss. 68, 60 So.2d 500; 12 Am. Jur., Contracts, Sec. 266 p. 813; Black's Law Dictionary (3d ed.), word "signed", p. 1628.
II. The Court below erred in holding that a "cashier's check" did not satisfy a bid requirement for a "certified check", since a "cashier's check" is a special form of a "certified check". Lundy v. Greenville Bank Trust Co., 179 Miss. 287, 174 So. 813; Horning v. Town of West New York, 82 N.J.L. 266, 81 A. 1116; Sec. 228, Code 1942; Beutel's Brannan, Negotiable instruments (7th ed.), Sec. 187.
III. The Court below pursuant to its powers of review under Section 1195 of the Mississippi Code of 1942 should have entered an order in accordance with the law governing the facts as set out in the bill of exceptions which requires the Board of Supervisors to let contracts for all classes of printing, Lee County Drys v. Anderson, 231 Miss. 222, 95 So.2d 224; White v. Pontotoc County, 192 Miss. 327, 5 So.2d 233; Secs. 1195, 8979, Code 1942.
Johnson White, Lexington, for appellee.
I. The Court below did not hold that a typewritten signature was not a "signature". It held that the proposal filed by the Lexington Advertiser was not a "legal signed bid". Sec. 8978, Code 1942; 36 C.J.S., File, pp. 752-753.
II. The record does not support appellant's contention that the Court below held that a "cashier's check" did not satisfy a bid requirement for a "certified check". Gardner v. Price, 197 Miss. 831, 21 So.2d 1; 20 C.J.S., Counties, Sec. 189 p. 1023.
III. The Board of Supervisors, in the exercise of a sound discretion, was correct in accepting the bid of the Holmes County Herald; and the judgment of the Circuit Court of Holmes County, affirming the action of the Board of Supervisors, was eminently proper. Haley v. State, ex rel. Mortimer, 108 Miss. 899, 67 So. 498; Williams v. Bergin, 129 Cal. 461, 62 P. 59; Secs. 8978, 8983, Code 1942; 20 C.J.S., Counties, Sec. 189 p. 1023; Donnelly, Law of Public Contracts, Sec. 116 p. 192.
This is an appeal from the judgment of the Circuit Court of Holmes County affirming an order of the Board of Supervisors thereof rendered on May 4, 1960, accepting the bid of the Holmes County Herald for furnishing office supplies, printing, etc., to Holmes County, Mississippi, for the period beginning May 2, 1960, and ending May 1, 1962, the appeal to the circuit court being by way of bill of exceptions by the appellant Mrs. Hazel Brannon Smith doing business as the Lexington Advertiser, after said bill of exceptions was corrected and amended by W. Leslie Smith, president of the said Board of Supervisors.
The Board of Supervisors had advertised for bids for furnishing office supplies, printing, etc., for the county and for the period above stated, when bids were submitted by the Holmes County Herald, Povall Printing Company, and the Lexington Advertiser. The bid of the Holmes County Herald was accompanied by cash to insure good faith. Neither the bid of the Povall Printing Company nor of the Lexington Advertiser were signed in writing, and the Board of Supervisors ordered and adjudged that the bid submitted by the Holmes County Herald was the only signed legal bid. The Board of Supervisors did not discover until its meeting on May 4, 1960, that the bid of the Lexington Advertiser had not been signed as a legal bid. Thereupon the attorney for the Board of Supervisors requested an opinion from the Attorney General of Mississippi as to whether or not the Board was entitled to consider an unsigned bid and award a contract thereon, and the attorney of the Board of Supervisors having been advised by the Attorney General that such a bid could not be accepted and acted on, the contract advertised to be let was awarded to the Holmes County Herald as being the only bidder which had submitted a signed legal bid. A photostatic copy of the bid of the Lexington Advertiser is contained in the record and the same is not signed by "Mrs. Hazel Brannon Smith d/b/a The Lexington Advertiser", nor does the name of Mrs. Hazel Brannon Smith otherwise appear on the photostatic copy of the original bid.
(Hn 1) Even though the requirement that a county contract shall be awarded to the lowest responsible bidder is held to be mandatory and not mere directive, yet the agency through which the county lets such contracts has broad discretionary powers in determining the responsibility of the bidder. 20 C.J.S., Counties, Section 189, page 1023.
In the Board's published notice inviting bids for the furnishing of office supplies to Holmes County it is therein stated that the successful bidders would be required to enter into bond, and that the Board reserved the right to reject any or all bids. The qualifications required of the bidders are fully set forth in Section 8978, Code of 1942, and one of the principals of these qualifications is that the bidder should be a bona fide resident of this state, own a printing plant and stationery business and be actually engaged in printing and stationery business. This Code Section specifically provides that the contract shall be "let to the lowest responsible bidder".
(Hn 2) Since the Attorney General was of the opinion that the Board of Supervisors would not be authorized to accept an unsigned bid, and had so advised the Board, we are of the opinion that in the exercise of its broad discretionary powers in determining the responsibility of a bidder the Board was justified in finding that neither the Povall Printing Company nor the Lexington Advertiser was the lowest responsible bidder in the instant case. The fact that their proposals were unsigned justified the Board in believing that any surety or sureties on their performance bonds, under Section 8983, Miss. Code of 1942, could have well denied liability thereon because the bids on which the contracts were based were unsigned, within the common acceptation of that term. The Lexington Advertiser was not a legal entity so far as shown by the record in the instant case and as hereinbefore stated the name of "Mrs. Hazel Brannon Smith d/b/a The Lexington Advertiser" did not appear on the original bid. In fact the name of Mrs. Hazel Brannon Smith nowhere appears on the said original bid.
We are therefore of the opinion that the judgment appealed from should be and the same is hereby affirmed.
Affirmed.
Kyle, Arrington, Ethridge and Rodgers, JJ., concur.