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Oregon Judicial Department Appellate Court Opinions

FILED: December 15, 2004 IN THE COURT OF APPEALS OF THE STATE OF OREGON GARY DENTAL, dba Bales & Brady Towing, Dental's Towing, and Bales & Brady West Towing, Respondent, v. CITY OF SALEM, Appellant. 02C11851; A119442 Appeal from Circuit Court, Marion County. Terry Ann Leggert, Judge. Argued and submitted March 10, 2004. Sharman Meiners argued the cause for appellant. With her on the briefs was City of Salem Legal Department. Kevin T. Lafky argued the cause for respondent. On the brief was Elton T. Lafky. Before Landau, Presiding Judge, and Armstrong, Judge, and Kantor, Judge pro tempore. ARMSTRONG, J. Reversed. ARMSTRONG, J. The City of Salem appeals an ORCP 67 B judgment that declared that it had improperly rejected three bids submitted by plaintiff for towing contracts and that ordered the city to evaluate the bids on their merits. The city assigns error to the decision to grant plaintiff declaratory and injunctive relief. We reverse. The material facts are undisputed. Plaintiff operates three towing companies. In 2001, the city decided to enter into seven contracts in three categories of towing services, and it issued a request for proposals (RFP). The RFP set forth detailed requirements for the proposals, including that the bidder "have obtained a Letter of Appointment issued by the Oregon State Police for placement on their Non-Preference Towing list" (1) and that the bidder include a copy of that letter with its bid. A letter of appointment from the Oregon State Police establishes that a towing company has satisfied the requirements OAR chapter 257, division 50, for a company to perform nonpreference tows. Among other things, those rules detail very specific substantive requirements for towing equipment--down to the size of the shovel that must be carried on a tow truck. See generally OAR ch 257, div 50. Plaintiff submitted contract proposals to the city on behalf of his three towing companies; however, he

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Oregon Judicial Department Appellate Court Opinions

failed to include in his bids the required appointment letters. Based on that failure, the city rejected each of plaintiff's proposals in November 2001, deeming them nonresponsive. (2) Plaintiff protested that action administratively; the city denied that protest on January 17, 2002. The city awarded all seven towing contracts to other companies on February 14, 2002. On March 1, 2002, plaintiff brought this action in circuit court. Plaintiff's complaint set forth three claims: (1) a claim under ORS chapter 28 for declaratory judgment, (2) a claim under ORS 279.067 (3) for injunctive relief, and (3) a contract claim. The city moved for summary judgment on plaintiff's claims, which the court denied. After a trial to the court, the court entered findings and conclusions in plaintiff's favor. In accordance with its findings and conclusions, the court entered a judgment declaring that the city's decision to reject plaintiff's bids was an unlawful decision and ordering it to consider the substantive merits of plaintiff's bids. In doing so, the trial court accepted plaintiff's argument that the city purchasing manual required the city to consider plaintiff's bids despite his omission of the appointment letters. (4) The city appeals, arguing that the matter was not justiciable in the trial court, that declaratory relief was not available to plaintiff, that the trial court applied the wrong standard of review, that neither ORS chapter 279 nor its purchasing manual require it to review plaintiff's bids, and that the relief that the trial court granted was erroneous. Before we address those arguments, we briefly describe the law that applies to the process that the city uses for awarding public contracts through competitive bidding. ORS chapter 279 provides the general framework. (5) ORS 279.055 authorizes a local government, such as the city, to establish its governing body as a local contract review board. In 1970, the Salem City Council designated itself the local contract review board and adopted a purchasing manual. ORS 279.049 authorizes the Attorney General to promulgate model rules of public contracting procedure; however, ORS 279.049(5) allows a public contracting agency to disclaim the Attorney General's rules and promulgate its own rules of procedure. Consistently with ORS 279.049(5), the city has adopted its purchasing manual as its rules of procedure, declaring the Attorney General's rules to be inapplicable to the city. Pursuant to its purchasing manual, the city rejected plaintiff's bids as "nonresponsive." On appeal, the city first argues that this dispute is nonjusticiable. Relying on Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993), the city reasons that, because it has already entered into exclusive contracts with towing companies that submitted responsive bids to the RFP, the court's decision in this case cannot have a practical effect on plaintiff's rights. Thus, according to the city, the trial court lacked jurisdiction to issue a declaratory judgment in plaintiff's favor. The city's argument overlooks ORS 279.067(2). That statute provides that, in addition to "such equitable relief as it considers appropriate in the circumstances[,] * * * the court may award an aggrieved bidder or proposer any damages suffered by the bidder or proposer as a result of violations of [the public contracting laws] for the reasonable cost of preparing and submitting a bid or proposal." ORS 279.067(2). Thus, if the court were to declare that the city violated the public contracting laws when it rejected plaintiff's bids, such a declaration could support recovery by plaintiff of the reasonable costs of preparing and submitting his bids. In fact, plaintiff requested that relief in his claim under ORS 279.067. Therefore, this matter is justiciable. The city next argues that the court erred in granting plaintiff's requested declaratory relief under ORS chapter 28 because ORS 279.067 provides plaintiff with an exclusive--or at least more appropriate-remedy. The city correctly points out that "[a]lthough a trial court has broad power to provide declaratory relief, it lacks subject matter jurisdiction under ORS 28.010 if some other exclusive remedy exists. * * * In addition, the trial court should decline to exercise its jurisdiction under ORS 28.010 if some more appropriate remedy exists." League of Oregon Cities v. State of Oregon, 334 Or 645, 652, 56 P3d 892 (2002) (citation omitted; emphasis in original). We consider the exclusivity argument first. ORS 279.067 provides, in part:

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Oregon Judicial Department Appellate Court Opinions

"(1) Any bidder or proposer adversely affected * * * may commence a suit in the circuit court for the county in which are located the principal offices of the public contracting agency, for the purpose of requiring compliance with, or prevention of violations of, [the public contracting laws], or to determine the applicability of [the public contracting laws] to matters or decisions of the agency." Nothing in ORS 279.067 indicates that the legislature intended for its judicial review provisions to be the exclusive recourse of aggrieved bidders such as plaintiff. The absence of such an indication leads us to conclude that the legislature did not intend ORS 279.067 to be the exclusive source of judicial authority to address public contracting disputes. See Oregonians for Sound Economic Policy v. SAIF, 187 Or App 621, 630, 69 P3d 742, rev den, 336 Or 60 (2003) ("The * * * appropriate inquiry is whether the legislature has enacted statutory wording that communicates an intention that a particular statutory scheme is exclusive."). The context of ORS 279.067 bolsters our conclusion that ORS 279.067 is not the exclusive mechanism for judicial review of this type of dispute. That context is provided by ORS 192.680, the statute from which the legislature borrowed the language in ORS 279.067. Tape Recording, Senate Local Government and Elections Committee, SB 190, Mar 21, 1983, Tape 40, Side A (statement of Legislative Counsel Kathleen Beaufait). ORS 192.680 provides the review mechanism for purported violations of the public meeting laws. In 1983, the same Legislative Assembly that enacted ORS 279.067 also amended ORS 192.680 to include language that makes review under ORS 192.680 the exclusive remedy for violations of public meetings law. Or Laws 1983, ch 453,

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