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World Wide Technology, Inc. v. Office of Administration

Court of Appeals of Missouri, Western District, Third Division

April 9, 2019

WORLD WIDE TECHNOLOGY, INC., Appellant,
v.
OFFICE OF ADMINISTRATION, STATE OF MISSOURI AND DIVISION OF PURCHASING AND MATERIALS MANAGEMENT, OFFICE OF ADMINISTRATION, STATE OF MISSOURI, Respondents; SHI INTERNATIONAL CORP., Respondent.

          Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon Edward Beetem, Judge

          Before Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

          Anthony Rex Gabbert, Judge

         World Wide Technology, Inc. (World Wide) appeals the circuit court's Judgment dismissing its Petition for Declaratory Judgment and Injunctive Relief against Missouri's Division of Purchasing and Materials Management Department of the Office of Administration. On appeal, World Wide contends the circuit court, 1) erred in refusing to grant World Wide's application for change of judge, 2) erred in denying World Wide's alternative post-trial motion for leave to amend, 3) erred in dismissing Counts I, II, III, and VII in that World Wide adequately alleged that the Request for Proposals contained unlawful criteria that rendered the entire Request for Proposals unfair, 4) erred in dismissing the First Amended Petition on the ground World Wide waived its claims, 5) erred in dismissing Count I of the First Amended Petition because Count I stated a claim, 6) erred in dismissing Counts II and VII because both stated a claim, 7) erred in dismissing Count III because Count III stated a claim, and 8) erred in dismissing Count V because Count V stated a claim.[1] We affirm.

         Factual and Procedural History

         World Wide is a Missouri corporation that provides technology solutions to public and private entities. World Wide previously held a contract with Missouri's Office of Administration to provide PC Prime Vendor Services, which permitted state agencies to purchase computer hardware, software, software maintenance, and related services from World Wide on an as-needed basis. World Wide's contract expired March 31, 2018.

         On June 28, 2016, the Office of Administration (OA) and Division of Purchasing and Materials Management ("Defendants" collectively) issued a Request for Proposals (RFP) to award a PC Prime Vendor Services contract to replace the one held by World Wide when it expired. Defendants subsequently issued six addenda to the RFP. The RFP specified the manner in which proposals would be evaluated, identified a point based system, and described how points would be applied. The RFP also provided Instructions for Submitting a Solicitation Response.[2] Included in the Instructions were provisions stating that it was the vendor's responsibility to advise the Division of Purchasing if the vendor believed anything within the RFP violated state or federal law or regulations; all issues were to be raised no later than ten days prior to the due date of the proposals. The final date for submitting proposals was August 23, 2016. World Wide raised no issues of concern prior to submitting its proposal.

         Three offerors responded to the RFP: World Wide; SHI International Corp. (SHI), a New Jersey Company; and Technology Group Solutions, LLC (TGS), a Kansas Company. After receiving the proposals, Defendants entered Best and Final Offer (BAFO) negotiations with the offerors. Defendants issued a total of eight BAFO requests. Following BAFO negotiations, Defendants evaluated the proposals and awarded the contract to SHI on February 9, 2018.

         On February 26, 2018, World Wide issued a bid protest letter to Defendants. Therein, World Wide claimed that the method OA used to calculate and award Minority Based Enterprise (MBE)/Women Based Enterprise (WBE) points was an unpromulgated rule, OA's method of calculating MBE/WBE points was unlawfully based on a superseded executive order rather than a current regulation, the cost evaluation method OA used was an unpromulgated rule, OA's cost analysis formula resulted in an arbitrary and capricious cost evaluation, OA failed to give preference to World Wide as a Missouri company as required by law, OA's evaluation of the offerors' references was unlawful, arbitrary, and capricious, and OA's award to SHI of full points for its "Method of Performance" was arbitrary and capricious. Four days later, on March 2, 2018, World Wide filed a Petition for Declaratory Judgment and Injunctive Relief seeking judicial review pursuant to Section 536.150, a declaratory judgment that any contract awarded SHI was void, and a permanent injunction barring Defendants from entering any contract resulting from the procurement. A judge was assigned that same date.

         On March 15, 2018, World Wide moved for a preliminary injunction to prevent OA from taking any further steps to implement the contract awarded to SHI, arguing that World Wide would suffer immediate and irreparable injury in the absence of such relief as the awarded contract was set to begin April 1, 2018, and "every day that the state is not ordered to re-bid the contract using lawful process is another day that World Wide does not have the opportunity to bid for the work." World Wide gave notice of a March 22, 2018, hearing on World Wide's Motion for Preliminary Injunction, but later withdrew that notice. On March 20, SHI moved to intervene and filed notice that a hearing on that motion would be held March 30, 2018. On March 27, 2018, World Wide filed a First Amended Petition. On March 30, 2018, the hearing on SHI's motion to intervene was held and SHI's motion was granted. Both OA and SHI filed motions to dismiss, and argument for those motions was scheduled for April 13, 2018; a bench trial on World Wide's petition was scheduled for May 18, 2018.

         On April 12, 2018, World Wide filed Suggestions in Opposition to the State Defendants' Motion to Dismiss, or, in the Alternative, Motion for Leave to Amend. On April 13, 2018, a hearing was held on the motions to dismiss. The parties presented argument and the court took the matter under advisement. On April 16, 2018, World Wide filed an Application for Change of Judge under Rule 51.05.

         On April 19, 2018, the circuit court entered an Order and Judgment dismissing World Wide's First Amended Petition with prejudice. Therein, the court concluded that World Wide's Application for Change of Judge came three days after the pending Motions to Dismiss were argued, submitted, and taken under advisement, and the application had not been noticed for presentment under Rule 51.05. The court found that the application did not preclude the court from ruling on matters already submitted.

         On April 23, 2018, World Wide filed Notice of Presentation of Application for Change of Judge, therein stating that the previously filed application would be presented April 27, 2018. On April 26, 2018, World Wide filed a Motion for Reconsideration or, in the Alternative, Motion for Leave to File Second Amended Petition. On April 27, 2018, the court denied World Wide's Application for Change of Judge. The court set World Wide's Motion for Reconsideration for a May 17, 2018, hearing. On May 30, 2018, the court denied the motion. This appeal follows.

         Given the issues before us, we deem it most logical to address World Wide's points in the following order: I (Change of Judge), III (Standing), V-VIII (Failure to State a Claim), IV (Waiver), and II (Leave to Amend).

         Point I - Application for Change of Judge

         In its first point on appeal, World Wide contends the circuit court erred in refusing to grant World Wide's Application for Change of Judge and entering Judgment for Defendants. World Wide argues that it filed a timely application, leaving the trial court with no authority to take any action but grant the application.

         We review de novo the trial court's legal conclusions and its application of law to the facts. Zweig v. Metropolitan St. Louis Sewer Dist., 412 S.W.3d 223, 231 (Mo. banc 2013). The timeliness of World Wide's Application for Change of Judge under Rule 51.05 is a question of law. In re S.M.H., 160 S.W.3d 355, 359 (Mo. banc 2005).

         Rule 51.05(a) provides that "[a] change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by a party." Pursuant to Rule 51.05(b), the application must be filed within sixty days from service of process, or thirty days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearances before the trial judge. Id. This rule grants "the absolute right to disqualify a judge once without cause or any showing of prejudice." State ex rel. Manion v. Elliott, 305 S.W.3d 462, 464 (Mo. banc 2010). '"Only motions that are taken under submission before the application for change of judge is filed may be ruled upon by that judge. "' Charron v. Missouri Bd. of Probation and Parole, 373 S.W.3d 26, 28 (Mo. App. 2012) (quoting Miller v. Mauzey, 917 S.W.2d 633, 635 (Mo. App. 1996)); See also Burgett v. Thomas, 509 S.W.3d 840, 846 (Mo. App. 2017).

         Citing State ex rel. Cohen v. Riley, 994 S.W.2d 546 (Mo. banc 1999), World Wide argues that Rule 51.05 cannot be interpreted to allow rulings on matters under submission after an application for change of judge because parties have a right to an impartial judge, and a party will have no reason to believe a judge is partial or prejudiced until arriving to argue a substantive matter and hear what the judge has to say about the case. World Wide argues that Jenkins v. Andrews, 526 S.W.2d 369 (Mo. App. 1975), and its progeny should be abandoned in light of Riley. We disagree.

         Riley involved a request for change of judge after the court issued a preliminary injunction. 994 S.W.2d at 547. The issue in Riley was not whether the court had authority to rule on pending matters under submission, but whether the hearing on the application for preliminary injunction constituted a "trial" implicating Rule 51.05(b)'s provision that, "[i]f the designation of the trial judge occurs less than thirty days before trial, the application (for change of judge) must be filed prior to any appearance before the trial judge." Id. at 548. Our Supreme Court held that, generally, a hearing on a preliminary injunction is not a trial on the merits and, specifically, the trial ...


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