United States Court of Appeals

For the Eighth Circuit

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No. 14-3857

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Demien Construction Co.

lllllllllllllllllllll Plaintiff - Appellant

v.

O’Fallon Fire Protection District

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 23, 2015

 Filed: February 1, 2016

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Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.

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RILEY, Chief Judge.

Demien Construction Co. (Demien) appeals fromthe dismissal ofits complaint

against the O’Fallon Fire Protection District (District). See Fed. R. Civ. P. 12(b)(6). 

Challenging the District’s decision not to hire Demien for a construction project,

Demien alleges the District violated Demien’s constitutional rights in the bidding
process. With jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the

district court.1

I. BACKGROUND

In the spring of 2014, the District, a subdivision of the state of Missouri,

solicited bids for the construction of a new firehouse. According to Demien, a

representative from the District called Demien’s president and asked the company to

submit a bid for the general work on the firehouse. 

The District provided bidders with an invitation to bid and instructions to bid,

which Demien attached to its amended complaint as exhibits. The instructionsto bid

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declare that the “Owner reserves right to reject any and all proposals when such

rejection isin the interest of Owner.” Under the heading AWARD OF CONTRACT,

the instructions explain:

It isthe intent of the Owner to award a contract to the lowest responsible

bidder provided the bid has been submitted in accordance with all

requirements of the bidding documents . . . . The Owner reserves right,

however, to award Contract in his best interest, and, therefore, reserves

right to select a Bidder other than the lowest.

The instructions also informed the bidders that the most recent printing of the

Recommended Guide for Competitive Bidding Procedures and Contract Awards for

Building Construction, published by the American Institute of Architects, (AIA

The Honorable John A. Ross, United States District Judge for the Eastern 1

District of Missouri.

Because under Federal Rule of Civil Procedure 10(c) “a written instrument

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that is an exhibit to a pleading is a part of the pleading for all purposes,” our ruling

“on a motion to dismiss under Rule 12(b)(6) may consider materials attached to the

complaint.” Abels v. FarmersCommodities Corp., 259 F.3d 910, 921 (8th Cir. 2001).

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guide) would “guide all bidding.” According to the AIA guide, “[t]he contractshould

be awarded to the lowest responsible bidder.” The AIA guide additionally states,

“The owner, by provisions in the instructions to bidders . . . typically retains the right

to reject any and all bids,” so long as rejection is not “used as a subterfuge.”

On May 27, 2014, the District awarded the contract to another general

contractor that had submitted a higher bid than Demien’s. Demien contends it

“submitted the lowest responsible bid” for the contract and “met all requirements for

submitting a bid,” thus it should have been awarded the contract. Demien suggests

the District must have awarded the contract based on “surmise, guesswork, or gut

feeling.”

Demien sued the District under 42 U.S.C. § 1983, alleging the District violated

Demien’s Fourteenth Amendment due process rights under the U.S. Constitution.

Demien also claimed the District violated its First Amendment rights, Missouri

Statutes section 321.220(4), and the Missouri Constitution. The District moved to 3

dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could

be granted, arguing, among other things, Demien lacked standing to pursue both the

federal constitutional claims and the state law claims and did not possess a legitimate

claim of entitlement to the contract. The district court decided Demien lacked

standing, but also concluded Demien failed to state a claim under the Fourteenth

Amendment Due Process Clause and abandoned any claim under the First

Amendment. The district court declined to exercise supplemental jurisdiction over

the state law claims, see 28 U.S.C. § 1367(c)(3), and dismissed those claims without

prejudice. Demien appeals only the dismissal ofthe Fourteenth Amendment and First

Amendment claims. 

This statute provides that fire protection districts shall be able to enter into 3

contracts and that “a notice shall be published for bids on all construction or purchase

contracts for work or material or both” when the contract “involve[s] an expense of

ten thousand dollars or more.” Mo. Rev. Stat. § 321.220(4).

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II. DISCUSSION

A. Article III Standing

In light of the district court’s holding, we first must address standing. See U.S.

Const. art. III, § 2, cl. 1; Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir.

2013). If Demien does not have Article III standing to sue the District, “we have no

subject matter jurisdiction over the suit.” Id. We review the existence of subject

matter jurisdiction de novo. See ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters,

645 F.3d 954, 958 (8th Cir. 2011). The basic requirements of Article III standing, the

“‘irreducible constitutionalminimum,’” are that a plaintiffmust demonstrate:(1) “‘an

injury in fact,’” that is “‘concrete and actual or imminent,’” (2) that the injury be

“‘fairly traceable’” to the “‘conduct of the defendant,’” and (3) “‘a likelihood that the

requested relief will redress the alleged injury.’” Miller v. Redwood Toxicology

Lab., Inc., 688 F.3d 928, 933-34 (quoting Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 102-03 (1998)). We have no problem concluding Demien has standing

under Article III. See Metro. Express Servs., Inc. v. City of Kansas City, 23 F.3d

1367, 1369-70 (8th Cir. 1994); cf. Wilcox Elec., Inc. v. FAA, 119 F.3d 724, 728 (8th

Cir. 1997); Mideast Sys. & China Civil Constr. Saipan Joint Venture, Inc. v. Hodel,

792 F.2d 1172, 1176 (D.C. Cir. 1986). 

Although it did not specifically mention Article III, the district court concluded

Demien “has not met its burden to establish standing to challenge the award of the

contract at issue.” The parties, following the district court, address standing by

discussing the application of our analysis in Metropolitan Express Services, Inc. v.

City of Kansas City, which also dealt with unsuccessful bidders trying to challenge

the allegedly unfair award of a government contract. See Metro., 23 F.3d at 1368-69.4

Although it does not affect our decision, we note a panel of the Missouri Court

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of Appeals, Eastern District, has concluded Metropolitan was wrongly decided. 

Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., No. ED 101588, 2014 WL

5847596, at *5 (Mo. Ct. App. Nov. 12, 2014). In Byrne & Jones, the Missouri court

disagreed with decisions from the Western and Southern Districts of the Missouri

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But that analysis addressed standing under Missouri state law, not Article III. Id. at 5

1370. Because this is a federal question case with Article III standing, and is not a

diversity case like Metropolitan, we need not consider whether Demien would have

standing to sue under Missouri state law. 

B. Motion to Dismiss

Deciding Demien has satisfied Article III standing, we now consider whether

Demien has stated a cause of action under § 1983 based on violations of the

Fourteenth Amendment and the First Amendment as incorporated under the

Fourteenth. See Fed. R. Civ. P. 12(b)(6).

1. Standard of Review

We review de novo whether a complaint states a cause of action. See, e.g.,

Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014). Federal Rule of Civil

Procedure 8(a)(2) requires a claim for relief to contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” To survive a Rule 12(b)(6)

motion to dismiss, the “complaint must contain sufficient factual matter” that “allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under our review,

we must “‘accept[] as true all factual allegations,’” but we are “‘not bound to accept

Court of Appeals, both of which have relied on Metropolitan to determine an

unsuccessful bidder has standing under Missouri law to challenge the award of a

contract under certain circumstances. See id. at *5-6; Brannum v. City of Poplar

Bluff, 439 S.W.3d 825, 830 (Mo. Ct. App. 2014); Pub. Commc’n Servs., Inc. v.

Simmons, 409 S.W.3d 538, 546-47 (Mo. Ct. App. 2013). In February 2015, Byrne

& Jones was transferred to the Missouri Supreme Court.

In Metropolitan we noted neither the district court nor the parties had

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discussed Article III standing but, without further discussion, summarily concluded

we were “satisfied that Metropolitan had standing under Article III.” Metro., 23 F.3d

at 1370. 

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as true a legal conclusion couched as a factual allegation.’” Carton v. Gen. Motors

Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010) (quoting McAdams v. McCord,

584 F.3d 1111, 1113 (8th Cir. 2009)). 

2. First Amendment

In its response to the District’s motion to dismiss, Demien did not address the

District’s argument that Demien failed to state a claim under the First Amendment,

and so the district court concluded Demien abandoned its First Amendment claims. 

Because we agree Demien has abandoned its claims under the First Amendment by

failing to argue them before the district court, we need not consider Demien’s First

Amendment arguments on appeal. See Joseph v. Allen, 712 F.3d 1222, 1226 (8thCir.

2013) (failing to oppose an issue before the district court resultsin waiver of the issue

on appeal). We also observe Demien has not made any specific allegation on appeal

regarding how the District violated Demien’s First Amendment rights. 

3. Fourteenth Amendment Due Process Clause

To state a claimunder the Fourteenth Amendment Due Process Clause,Demien

must have alleged it was deprived of a protected interest without due process of law. 

See, e.g., Barnes v. City of Omaha, 574 F.3d 1003, 1005-06 (8th Cir. 2009). 

Protected interests under the Due Process Clause are those to which a person holds

a “legitimate claim of entitlement,” and stem from “independent source[s] such as

state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). 

Unless Demien can demonstrate it held a valid property interest under Missouri

law in the subject contract, we must affirm the district court’s dismissal of Demien’s

Fourteenth Amendment claim. See L & H Sanitation, Inc. v. Lake City Sanitation,

Inc., 769 F.2d 517, 524 (8th Cir. 1985) (holding “the district court did not err in

dismissing appellants’ § 1983 claim challenging the city’s allegedly arbitrary award

of the contract for failure to state a claim because [none of the plaintiffs] had a

protected property interest under [state] law”). “Under Missouri law an unsuccessful

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bidder on a construction project has no property right in the contract.” Hanten v. Sch.

Dist. of Riverview Gardens, 183 F.3d 799, 808 (8th Cir. 1999); see also State ex rel.

Mid-Mo. Limestone, Inc. v. County of Callaway, 962 S.W.2d 438, 441 (Mo. Ct. App.

1998). “[W]here a public body reservesthe right to reject any and all bids,” a rejected

bidder has “no vested interest or property right” in the contract. La Mar Constr. Co.

v. Holt Cty., R-II Sch. Dist., 542 S.W.2d 568, 570 (Mo. Ct. App. 1976). Here, the

District’s invitation to bid clearly advised “[t]he [District] . . . reserves right to select

a Bidder other than the lowest” and “reserves right to reject any and all proposals.” 

No rejected bidder gained a property right in the award of the contract. See id.; cf.

Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) (stating “a benefit is not

a protected entitlement if government officials may grant or deny it in their

discretion”). 

Demien accuses the district court of ignoring Metropolitan, Public

Communications Services, Inc. v. Simmons, 409 S.W.3d 538 (Mo. Ct. App. 2013),

and State ex rel. Mid-Missouri Limestone, cases Demien contends “establish the right

of an unsuccessful bidder to bring suit if the award of the bid was done unfairly.” 

While these cases demonstrate an unsuccessful bidder may have standing under

Missouri law to challenge the award of a contract, none grant a property right to the

lowest bidder, and, furthermore, “[s]tanding to bring a state court claimof deprivation

of property rights does not establish a protected property interest,” Kim Constr. Co.

v. Bd. of Trustees of Mundelein, 14 F.3d 1243, 1249 (7th Cir. 1994). See also

Metro., 23 F.3d at 1371; Simmons, 409 S.W.3d at 546; State ex rel. Mid-Mo.

Limestone, 962 S.W.2d at 441 (declaring “unsuccessful bidders” do not have

“private, pecuniary interests which the law will recognize and enforce”). 

Finally, we are unpersuaded by Demien’s attempts to create a binding

obligation fromlanguage in the AIA guide and the invitation to bid. Because the AIA

guide said the contract “should” be awarded to the lowest bidder, Demien argues the

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District was obligated to award the contract to Demien. As the District suggests, the

invitation and AIA guide merely state the District may accept the lowest bid, “but 

. . . doesn’t need to.” Demien tries to find ambiguity in the AIA guide and the

invitation to bid, maintaining principles of contract law demand we construe any

ambiguity against the District. But rules of contractual interpretation are inapplicable

here because Demien and the District never entered into a contract. See State ex rel.

Johnson v. Sevier, 98 S.W.2d 677, 679 (Mo. 1936) (determining an advertisement

soliciting bids to a public project “‘was not an offer of a contract, but an offer to

receive proposals for a contract’” (quoting Anderson v. Bd. of Pub. Sch., 27 S.W.

610, 612 (Mo. 1894))). 

In sum, Demien failed to allege the District deprived Demien of any

entitlement, and so it failed to state a claim under the Fourteenth Amendment Due

Process Clause.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of Demien’s

complaint.

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