| Volume Number: 29
Category(s): CONTRACTS |
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| Opinion Issued December 17, 2012 | |
| DISCOUNT INDUSTRIAL SUPPLY CORPORATION | |
| VS. | |
| DEPARTMENT OF ADMINISTRATION | |
| (CC-11-0589) | |
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James A. Kirby III, Attorney at Law, for Claimant. Stacy L. Nowicki, Assistant Attorney General, for Respondent. |
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| PER CURIAM:
Claimant, Discount Industrial Supply Corporation (“DISCO”), brought this action seeking an award of attorney fees for substantially prevailing on a Writ of Mandamus filed in the Circuit Court of Kanawha County. Respondent, Department of Administration (“DOA”), denies that Claimant is entitled to attorney fees because Claimant did not prevail on the Writ of Mandamus. The Court is of the opinion to award partial attorney fees for the reasons more fully stated below. The Division of Purchasing, an agency of Respondent DOA, developed a Request for Quotation (“RFQ”) for the purchase of supplies on a statewide contract identified as SAFETY10. Seven companies bid on the RFQ, including Airgas Inc. (“Airgas”) and Claimant. Claimant was the original lowest bidder and was awarded the contract. Claimant, however, in its bid proposal, did not hold its prices firm for one year, a material alteration of the terms of the RFQ. As a result, the contract was then awarded to Airgas as the next lowest bidder. Claimant subsequently filed a formal protest of the award to Airgas and was denied relief. On September 10, 2010, following that denial, Claimant filed a Writ of Mandamus in the Circuit Court of Kanawha County alleging that the Division of Purchasing awarded Airgas the contract in error because the Airgas bid did not contain some mandatory specifications for several products. Claimant sought to have the Airgas contract terminated, and the contract awarded back to Claimant. Claimant also sought its reasonable attorney fees. The Division of Purchasing contacted Airgas to confirm the mandatory specifications for several products included on its bid. On September 27, 2010, after determining that several products did not contain the mandatory specifications, the Division of Purchasing immediately issued a cease and desist letter. The Airgas contract was ultimately cancelled by the Division of Purchasing on October 29, 2010. The Circuit Court of Kanawha County denied the Claimant’s Writ of Mandamus upholding the well-settled law that the State has ultimate discretion in whether or not to award a contract to vendors. The circuit court held that the Division of Purchasing was under no obligation to rebid the contract or to award the contract to Claimant, and that the issue was essentially moot because the Division of Purchasing cancelled its contract with Airgas in conformance with the West Virginia Code of State Rules. The circuit court also denied the Claimant’s motion for attorney fees based on, inter alia, the doctrine of sovereign immunity. Claimant did not appeal the circuit court’s order. Claimant now seeks relief in the Court of Claims alleging that Claimant is entitled to its reasonable attorney fees for filing a Writ of Mandamus in the Circuit Court of Kanawha County and placing the Respondent on notice that its contract with Airgas was not compliant with the RFQ. After a full review of the record, there is evidence with regard to the insufficiency of numerous product specifications contained in the SAFETY10 RFQ. For example, the RFQ called for a flame retardant material to be used in connection with one of the products. The winning bidder, Airgas, did not include this flame retardant material in conformance with the specification. Therefore, based upon the facts in this case and without setting precedent, this Court is of the opinion that because claimant’s action forced the Division of Purchasing to comply with its own rules, compensation for Claimant’s action is viewed by this Court to encourage the public to take such affirmative action to benefit the public’s health and welfare. Thus, in this instance, a moral obligation exists to pay partial attorney fees to the Claimant to the extent that filing the Writ of Mandamus in the Circuit Court of Kanawha County put the Respondent on notice that its contract with Airgas contained defects that were a potential hazard to the public. In the mandamus proceeding, Claimant sought cancellation of the Airgas contract for its failure to comply with mandatory specifications for products. The Court finds that but for the Writ filed, Respondent would not have acted to cancel the Airgas contract. In addition, Claimant sought by its Writ to have the contract awarded to it. This prayer for relief was correctly denied by the Circuit Court. A review of the attorney hours for which fees are requested involve the latter issue. Since Claimant was unsuccessful on this issue, the Court awards no attorney fees. The Court is of the opinion that the proper course in this matter was an appeal of the Circuit Court decision relating to the attorneys fees. However, in this instance the Claimant, having been directed by the Circuit Court to recover attorney fees in the Court of Claims, this Court reluctantly makes an award under this particular scenario. The Court has reviewed, in camera, a detailed list of all billing transactions in connection with the Claimant’s legal representation and does determine that the Claimant is entitled to an award in the amount of $5,000.00, and this amount is fair and reasonable in view of the foregoing policy concerns, and for the reasons stated herein. Award of $5,000.00. |
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| Summary: |
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