# FILED February 4, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION

CHRIS-HILL CONSTRUCTION ) Tennessee Claim s Commissio

n COMPANY, ) Western Divisio n, Claim 204648 ) Claimant/Appe

llant, )

) v. ) Appeal No. 02A01-9803-BC00057 ) STATE OF TENNESSEE, ) ) Defendant/Appellee. )
APPEAL FROM THE TENNESSEE CLAIMS COMMISSION

WESTERN DIVISION

AT MEMPHIS HONORABLE MARTHA BRASFIELD, COMMISSIONER For the Appellant: James W. McDonnell, Jr. O. John Norris WYATT, TARRANT

& COMBS 6075 Poplar Avenue,

Suite 650 Memphis, TN

38119-4721 For the Appellee: John Knox Walkup Attorney General and Reporter Mary G. Moody Senior Counsel Laura T. Kidw

ell Assistant Attorney General 425 Fifth Avenue No

rth Second Floor, Cor

dell Hull Bldg. Nashville, TN 3 7243-0488

AFFIRMED WILLIAM H. INMAN, SENIOR JUDGE CONCUR: W. FRANK CRAWFORD, JUDGE2

DAVID R. FARMER, JUDGE 

### O P I N IO N The Facts This claim arises

from Chris-H

ill Cons truc tion Company’s (“claim ant”) participation

in bidding on a Tennessee Department

of Transportation (“TDOT”) project for widening and improving the bridges and approach

es over the Illinois Central Railroad, Tarent Bran ch and Cane Creek on U .S. 51 in Shelby County (“the project”). The plans and specifications for this pro ject were pre

pared by TDOT which furnished the m to interested

bidders, including Ch

ris-Hill and Dement Construction Company (“D ement”). BobbyGarland of the TDOT was available to prospective bidders to answer questions about contract requ irements. D anny Stoppenhage n and J. B. Hill,
re pr esentatives of Chris-Hill, contacted Garland to enquire if TDOT would enforce
anote on the plans

prohibiting the place

ment of a cra

ne on the existing bridge

in order to drive pilings. Aft

er checking with

the TDOT Stru

ctures Division, G

arland informed them that the note would be enforced. Chris-Hill thereu pon added the costs of constructing a ber m upon which to lo

ca te a platform for the crane to it s bid. On February 13,

1991, two days befor

e the bids were to be

opened, Deme

nt Vice-President

Ty Capps conta

cted Garland and a

dvised hi m

that there were conflicting

provisions in the

plans and specifica

tions regarding the

requirement o

f seismic connections in the bea

ring pilings for the br

idges. He reques

t ed tha t TDOT issue an addendum to the contract clarifying the matter. Garland reviewed the plans and specifica

tions and talked with Danny Stoppe nhag en about his interpretation

of them, and th

ereupon determ

ined t hat there was a confl

ict in the documents. On February14, Garland told Capps t hat an addendum c

larifying the3

requirements

for seismic connec

tions on the pilings would not be issued because itwas too late to issue

a clarification t

o all interested bidders . He told Capps to bid the job based upon

his own (Capps’) interp retation of the plan s. On the same d ay, Stoppenhagen called Garland asking if “ anything else had

developed regarding

the seismic piling.” Garland

advised Stoppenhagen,

as he had advised Cap

ps, that he shouldbid the job base d upon his own (Stoppenha gen’s) interpre

tation of the documents. On February 15,

1991, the bids were subm

itted and opened. The two lowest bidders were Deme

nt at $1,46 3,378 a nd Chris-Hill at $1,525,529. The contract
was awarded to Dement. During the bid review process, Garland determ ined that Dement would still be the

lowest bidder afte

r adding $10,200 (Dement’s estimated price for the seism

ic connections in contr

oversy) to its bid

as submitted. After th e contract was aw arded, Dem

ent and the TDOT

agreed that the
c ontractwas ambiguous a bout whether the use

of seismic conn

ectio ns in th e bearing pilings for the bridges was required. As provided for i n the Standard Specifications

for Road and Bridge Con struction, Dement and TDOT executed a supplemental agre eme nt paying Dem ent $150 per connectio

n for the seismi

c connections, for a total of $10,2 00. This amount

would have been paid to ChrisHill had it been the successful bidder. After construction began,

Dement obtain

ed permission f

rom TDOT

to place
acrane on the existing bridge i

n order to drive som

e of the pilings for th

e project, which eliminated the need to construct a berm or base for that purpose. The contract require

d the installation of

a double row of

sheet piling parallel to the Illinois Central tr

acks in order to

maintain the sta

bility of the tra

cks during the excavation

for and driving of the

concrete bridge pilings. Claimant complained1 Dement had discussed the matter with the railroad, who advised Dement that one row

was adequate. But the TDOT thought otherwise and insisted on a double row as the contract specified. 4 thatDeme nt was not

only using a crane on the existing bridge, but had installed only one row of sheet piling, in violation

of the contract. 1 Dement was thereupon instructed by TDOT to instal l the second row. Chris-Hill

filed this claim

alleging that it

sus tained damages

as a result of the negligence of the

TDOT, in

allowing Dem

ent to use the existing b

ridge as the platform from which to drive the required p ilings in vio lation of the contract. Claimant alleged that if the “secret vari ation” had been discl

osed, the expense incurred for the construction of a berm woul

d not have been requir

ed and consequently

it would have been the low bidder. This action by TDOT is alleged to have been in violat ion of T.C.A. § 9-8-307(a)(1)(I) and (N) as hereafter sta ted. Claimant alle

ged further varia

tions previously di scovered. Because TDOT alway

s prepared its

own cost estimates on pr

ojects, claim

ant requested production of TDOT’s es timate of the costs involved in driving the pilings. This request was refused. Atthe close of the

claimant’s case the Comm issioner granted the motion of TDOT to dismiss, holding t hat there was no eviden ce that TDOT grant ed DEMENT the variance prior to the bidding and thus no negligence. Issues Presented for Review 1. Didthe claim

antpresent a prima facie case of negligence, or as enlarged by TDOT,

what rightsdo the provisions of T.C. A. § § 54-5- 114 --118 convey upon t

hose bi dding on a state highway project in accordance with t

hose statutes? 2. Does T.C.A. § 9-8-307(a)(1)(I ) provide jurisdic

tion in the Tennessee Claims Commission for claims by unsuccessful bidders on Tennessee Department

of Transportation

construction proje

cts, alleging that the Statewas negligent in all

owing the successful bidderto deviate from the original plans and specifications?5

3. Was the Commissioner correct in re fusing to compel the St

ate to Produce its construc

tion estimate f

or this project? Standard of Review The case was involuntar

ily dismissed pursua

nt to Rule 41.02(2), T.R.C.P., which requires a consider ation of the stan dard prescribed in City of Columbia v. C. F. W. Const. Co., 557 S.W.2d 734 (Tenn. 1977):

But in the non-ju ry case, when a m otion to dismiss is made at the close of plaintiff’s case under Rule 41.02(2), the tri al judge must im

partially wei

gh and evaluate the evidence in th e same manner as though he were maki

ng findings of fact at the

co nclusion of all of the evidence for both parties , determine t he facts of the case, apply the law to those facts,

and, if the plaintif

f’s case has not be en made out by a preponderance of t he evidence, a judgment ma y be rendered agains t the plaintiff on the merits, or, the trial judge, in his discretion, m

ay decline to render judgment until the close of all the evidence
. The action should be dism issed if on the facts

found and the applicable law the

plaintiff has sh

ow n no right to relief. This court’s scope of review of the Commis sioner’s decision is pursuant to Rule 13(d), T. R. A. P. The findingsof the trial court i n granting a Rule 41. 02(2) motion are accompanied by a presumption of correctnes s and, unless the prepo nderance of the evidence is ot herwise, those f

indings must be af

firmed. Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn . App. 1991). Discussion Chris-Hill

asserted its claim for d

amages under T .C.A. § 9-8-307 , sections (a)( 1)(I) and (N), the lat ter of which provides jurisdiction in the Cla im s Commission

for claims arising from “negligent deprivation of sta tutory rights.” The statutory rights

Chris-Hill seeks t

o enforce are those arising under T. C.A. § § 54-5-113 -- 118, which provide that the Tennessee De

partment of T

ransportation, when making cont

racts in its own behalf or w hen acting as agent,

must advertise for bids, require that

a bond accompan

y the bids, open th

e bids in the

presence of6

the bidders and public, a

nd award the contra

ct to the best and most advanta

geous bidder, reserving

the right to rejec

t all bids, a proces s referred to as “compe

titive bidding,” State ex rel. Leech v. Wright , 622 S.W.2d 807, 814-8 15 (Tenn. 1981). A consideration of the

first issue requires this Court to determ ine what rights these statutes confer upon participating bidder s. Itis well settled tha

t com petitiv e bidding statutes are enacted for the purposes of providing bidder s w ith a fair opportunity to compete for

public contracts and pro moting th e public interest by guarding against fav

oritism and fraud. Marta v. Metropolitan Govern ment of Nashville, 842 S.W.2d 611, 616-617 (Tenn. App. 1992). A participating bidder has the right to have its bid considered honestly and fairly, c

ompeting on

the same footin

g as all other bidders
. Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 737 (Tenn. App. 1989). This requires that all bidders be placed upon the same plane

of equality and t

hat they each bi

d upon the same term

s and conditions involved i n all the items a

nd parts of

t he contract and tha t the pr oposal specif y as to al l bids t he same, o r subst antial ly s imila r specifications. State ex rel. Leech v. Wright , 662 S.W.2d at 815
. The claimant had th

e right to prepare a

nd s ubmit its bid u pon t he same terms, conditions, plans and s pecifications rel

ied upon by all othe

r bidders on this project, and prior to bidding, Chr is-Hill was entitl

ed to have

the same infor

mation regarding the requi

rements of the

contract that was

given to Dement
. In the Section (N) a

verments, Chr

is-Hill alleges tha

t it was denied its rights underthe competitive

bidding s tatute b ecause, after t he contract was a

warded, TDOT allowed the successfu l bidder, Dement, t o de viate from the plans and sp ecifications

in the actual construction of the project. Three deviat ions wer e specifically a

lleged by the cla

imant:2 The State is not liab le for “. . . willfu

l, malicious or cri

minal acts by State e

mployees, or for acts of State employees done for personal gain.” T.C.A. § 9-8-307(a)(3)(d). The statutory scheme

is clear that the l

iability of the State

is bottomed on neglig

ence, the failur

e to use ordinary care or to adhere to an appropriate standard of care
. See, Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn. 1994). 7 1. TDOT allowed Dem ent to place a crane on

the existing bridge in order to drive sheet metaland concrete pilings
. 2. TDOT entere d a supplemental agreement w ith Dement providing for payme

nt of $150 for each of

sixty-eight seismic piling c

onnections. 3. TDOT allowed Dem ent to u se only one row of sheet metalpilings in a

location where the plans called for t wo rows. It was admitted by the TDOT that after the co ntract was let, De ment wa s given a supplemental contract for sixty -eight seismic

connections at $ 150 each, an d thatduring the constructi on Dement wa

s allowed to place a

crane on the existing bridge. Dement com

plied with

TDOT’s orde

r to usea double row of shee t piling after it was broug

ht to the attention of T

DOT that a single

row was being used. Chris-Hill, in its complaint, referred to these

“secret devia

tions,” alleging th at TDO T told Dement

, before bidding, t

hat the deviations wo

uld ultimately

be allowed, and that if it had known befor e bidding that TDOT

would ultimate

ly allow these deviations fro m the plans and specifications, its bid would have been the lowest. The State argues that

a claim for de

privation of rights unde

r the competiti

ve bidding statutes requires Chris-Hill to prove t hat TDOT assur ed Dement tha

t it would be allowed to m

ake these deviations before it submitted its bi d. 2 The State argues that claimant presented no direct proof that TDOT provided Dement with informat

ion prior to bidding that gave it a

ny unfair advant

age in the bidding. Bobby

Garland, the TD

OT employ

ee responsible for c

ommunicati

n g wit h prospective

bidders about the plans

and specifications,

testified that he did

not8

discuss the issues of placing a crane on the exist

ing bridge or the number of rows of sheet pi ling required with De ment prior to the

submission of bids.

He also testifi ed that, although he did d iscuss with Dem

ent the issue of whe

ther seis mi c connections were required, he did not tell

Dement before the bidding that it woul d be allowed a supplem

ental agreem

ent to pay for se

ismic connectio

ns. The claimant rel

ies on the fact

that after the cont

ract was awar

ded, Dement
was allowed to deviate from the original plans and specifications, and argues that it is reasonable

from that fact that Dement had been told prior to bidding tha

t the deviations would be allowed. Itis not controverted th

at in most TDO

T highway const

ruction projects t

he contractor

is allowed to

deviate from

the or igin al pla ns and speci ficat ions in so me way, a practice known to Chris-Hill because it has been allowedsuch deviations
on its TDOT proj ects. We agre e with the argum

en t of the appellee tha

t if the inference proposed by the cl aimant established a prima facie case, the unsucce ssful bidderon most

TDOT projects could make a claim that they had been deprivedof rights under the competitive b idding statutes
. Such an inference is equatable to

a finding of corrupt state

action, and

cannot be properly

considered as neglig

ence in order to make a 307(N) case. Without the inference, it is not seriously controverted that there is no proof in the record which w

ould support a finding tha t Dement Const

ruction Company
was given an unfair adva

ntage in the bidding on thi s project or that, for any reason, Chris-Hil l’s bid was not “fairl y consid ered.” The Com missioner’s d

ismissal of Chris-Hil l’s cl aims unde r T.C.A. § 9- 8-307(a)(1)(N) is not contrary t

o the preponderance of the evidence.9 T.C.A. § 9-8-307(a)(1)(I ) provides that the C

laim s Commission has jurisdiction to hea

r claims aris

ing from Negligence in plann ing and programming for, inspect io n of, design of, preparation of plans for, approval of p lans for, and construction of,

public roads, stree

ts, highways, o r bridges and simil

ar structures, designated by th e Depar tm ent

of Transportation as being on the State system of high ways or the St

ate system

of interstate highways. The Claims Com

missioner found t

hat jurisdiction only

existed under this section for Chris-Hill’ s claim so

far as it pertaine

d to negligence in the

preparation of the plans for the pro

ject to be bid. Ch

ris-Hill claim

ed that TDOT had been negligent in the preparation of

the plans because the

re was an am

biguity in the p lans regarding the use of seismic connections o n the concrete pilin gs. Th e Commissioner

dismissed that

claim on the basis that, unde

r this court’s holdi

ng in Computer Shoppe, Inc. v. State, supra, the State has no duty to prospective bidders to prepare error

-free plans. C hris-Hill

also argues that Se

ction 307(a)(1)(I

) authorizes cla

ims b y unsuccessful bidders against the State which allege negligence on the part of the TDOT in allowing successful bidders to deviate from the original plans an d specifications. We cannot agree. The post-contract deviations were not the result of negligence and Se

ction 307(a)(1)(I

) is not implicat

ed. Finall y, claimant argu

es that the Comm

ission erred in not re

quiring th e TDOT to produce its in-house estimate of the costs of the p roject. The General Assembly prohibited the publica

tion of information

which revealed the

amount of available funding for

any project b

y Chapter 1085 of

the 1990 Public Acts. The judgment

is affirmed a

t the costs of the appe

llant.

_______________________________10 William H.

Inman, Senio

r Judge

CONCUR:

_______________________________ W. Frank Cra

wford, Judge

_______________________________ David R. Farm

er, JudgeIN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION

CHRIS-HILL CONSTRUCTION ) Tennessee Claim s Commissio

n COMPANY, ) Western Divisio n, Claim 204648 ) Claimant/Appe

llant, )

) v. ) Appeal No. 02A01-9803-BC-00057 ) STATE OF TENNESSEE, ) ) Defendant/Appellee. )

__________________________________ ____________________________ 

### J U D G M E N T

__________________________________ ____________________________ This cause came on

to be regularly

heard and considered by

this Court, and for the reasons stated i n the Opinion of thi s Court filed this d ate, it is ORDERED that: 1. The judgm

ent of the trial cour

t is affirmed
. 2. Costs of this appeal a re taxed against th

e a ppellant, Chris-H

ill Constr uction Company, f or whic h execu tion may i ssue if necess ary.

____________________________ INMAN, S.J.__________________________ CRAWFORD,

J.

____________________________ FARMER, J.