Lead Opinion
Byrne & Jones Enterprises, Inc. d/b/a Byrne and-Jones Construction filed an action against Monroe City R-l School District and members of the Board of Education of Monroe City R-l School District (collectively, the school district) alleging that it was denied a fair and equal opportunity to compete in the bidding process for a public works contract to build an athletics stadium because of collusion and favoritism between the school district and another bidder,'ATG Sports, Inc. The trial court dismissed- Byrne & Jones’ petition after finding that Byrne & Jones, as an unsuccessful bidder, lacked standing to challenge the award of the contract because it did not bring the action as a taxpayer or in the interest of the public. Byrne & Jones appealed, asserting that it has standing to challenge the school district’s award of the contract because, as a participant in the competitive bidding process, it has a right to a fair and equal opportunity to compete for public contracts.
The trial court erred in dismissing Byrne & Jones’ petition because competitive bidding procedures for public contracts ensure that all who wish to bid have a fair and equal opportunity to compete in a field without favoritism or collusion. Unsuccessful bidders, therefore, have an interest in having a fair and equal opportunity to compete in the bidding process. Accordingly, because Byrne <& Jones alleged that it was denied a fair and equal opportunity to compete in the bidding process for the athletics stadium, Byrne & Jones had standing to challenge the award of the contract to ATG Sports.
Nevertheless, the trial -court did not err in dismissing Byrne & Jones’ petition because Byrne & Jones is not entitled to the relief requested in its petition. Byrne <&. Jones’ request for injunctive relief is moot in that, at the time of oral argument, the school district had let the contract to ATG Sports, which completed the athletics stadium that is now in use. Furthermore, Byrne & Jones -is not entitled to its bid preparation costs because section 177.086.2
In 2013, the school district began planning to build a new athletics stadium at Monroe City High School. The school district subsequently contacted ATG Sports about the proposed stadium and requested ATG Sports’ assistance in designing the project. Throughout 2013, the school district emailed and had meetings with ATG Sports about the stadium project. Over the course of its communications with the school district, ATG Sports submitted unsealed plans and drawings of the proposed stadium to the school district and drafted the request for proposals that the school district later used to solicit bids for the project.
In the request for proposals, the school district sought base bids on the project as well as bids on 13 possible alternates or enhancements to the project. Byrne & Jones and ATG Sports were the only bidders on the project.
Byrne & Jones submitted the lowest base bid as well as the lowest total bid when factoring in all 13 of the proposed enhancements to the project. When the school district selected only seven of the 13 alternates, however, ATG Sports’ total bid was the lowest. In January 2014, the school district awarded the contract to ATG Sports.
On March 25, 2014, Byrne & Jones filed a declaratory judgment action against the school district. In count I of its petition,
The school district, subsequently, filed a motion to dismiss the petition. In its motion, the school district claimed that, as an unsuccessful bidder, Byrne & Jones lacked standing to challenge the award of the contract to another bidder because Byrne & Jones had no vested or protectable interest in the award of the contract. Byrne & Jones filed suggestions in opposition arguing that an unsuccessful bidder has standing to challenge a contract if the bidding procedures did not afford all bidders a fair and equal opportunity to compete.
On May 22, 2014, the trial court entered its judgment sustaining the school district’s motion to dismiss. The trial court determined that a low bidder has no standing under section 177.086, the school district’s competitive bidding procedures, to challenge the award of a contract to another bidder because the statute is clearly intended to safeguard the interest of the public, not the individual bidders. Therefore, the trial court concluded that Byrne & Jones lacked standing in that it was bringing the action as an unsuccessful bidder, not as a representative of Monroe City R-l School District taxpayers.
Standard of Review
This Court reviews the grant of a motion to dismiss de novo. Ambers-Phillips v. SSM DePaul Health Ctr., 459 S.W.3d 901, 905 (Mo. banc 2015). “In reviewing the dismissal of a petition, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to the plaintiff, the plaintiff is entitled to relief.” Doss v. Doss, 822 S.W.2d 427, 428 (Mo. banc 1992). “This Court must affirm the. dismissal if it can be sustained on any ground supported by the motion to- dismiss.” Beck v. Fleming, 165 S.W.3d 156, 158 (Mo. banc 2005).
Standing of Unsuccessful Bidders
Byrne & Jones argues that it has standing to challenge the award of the contract to ATG Sports because it was denied a fair and equal opportunity to compete in the bidding process. To bring an action in a Missouri court, a party must have standing. Lebeau v. Commissioners of Franklin Cnty., Missouri, 422 S.W.3d 284, 288 (Mo. banc 2014). Standing is a threshold issue and “a prerequisite to a court’s authority to address substantive issues.” S.C. v. Juvenile Officer, 474 S.W.3d 160, 163 (Mo. banc 2015). Standing is a necessary component of a justiciable case that must be established prior to adjudication of a base’s merits. Schweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013). Moreover, “[standing is an antecedent to the right to relief.” Manzara v. State, 343 S.W.3d 656, 659 (Mo. banc 2011). Therefore, prior to addressing the merits of Byrne & Jones’ claim and whether it was entitled to the requested relief, this Court must first determine whether Byrne & Jones had standing.
“In the context of a declaratory judgment action, the plaintiff must have a legally protectable interest at stake in the outcome of the litigation.” Id. A plaintiff has a legally protectable interest if “the plaintiff is directly and adversely affected by the action in question or if the plaintiffs interest is conferred by statute.” Id. (internal quotation omitted). “Missouri requires that a complainant be within the zone of interests to be protected or regu? lated by the statute or constitutional guarantee in question to bring an action thereunder.” Weber v. St. Louis Cnty., 342 S.W.3d 318, 323 (Mo. banc 2011).
Byrne & Jones asserts that it was denied' a fair and equal opportunity to compete in the bidding process for the school district’s athletics stadium project. Section 177.086 sets out- the competitive bidding procedures for all school districts regarding facility construction expenditures. Section 177.086.1 requires school districts constructing facilities that exceed $15 thousand dollars to publicly advertise, for bids “once a week for two consecutive weeks, in a newspaper of general circulation ... located within the city in which the school district is located.” All bids submitted to the school district must be sealed and in writing. Section 177.086.3. The school district cannot entertain bids that are not in “accordance with the specifications furnished by the district and all contracts shall be let to the' lowest responsible bidder complying with the terms of the letting, provided that the district shall have the right to reject any and all bids.” Section 177.086.2. Under this competitive bidding scheme, the ■ school district reserves the right to reject any and all bids, including the lowest bid submitted. State ex rel. Page v. Reorganized Sch. Dist. R
The trial' court determined that Byrne & Jones lacked standing because an unsuccessful bidder has no standing under the competitive bidding procedures set out in section 177.086 to challenge the award of a contract to another bidder. The trial court found that competitive bidding statutes are intended to safeguard the interests of the public; thus, when fraud, corruption, or capriciousness occurs in the bidding process, the public, not the unsuccessful bidder, is the real moving party that is entitled to bring an action to enforce cancellation of the contract.
Generally, Missouri courts .have held that an unsuccessful bidder competing for a public contract has no special pecuniary interest in the award of the contract to it and, therefore, lacks standing to challenge the award of the contract to another bidder. See State ex rel, Johnson v. Sevier, 339 Mo. 483, 98 S.W.2d 677, 681 (1936); Page, 765 S.W.2d at 321; Metcalf & Eddy Servs., Inc. v. City of St. Charles, 701 S.W.2d 497, 499 (Mo.App.1985); La Mar, 542 S.W.2d at 570-71. As this .Court has explained, an unsuccessful bidder has no interest in having a public contract awarded to it for two reasons:
(1) Because [an] advertisement [is] not an offer of a contract, but an. offer to receive proposals for a contract, and (2) because the statute requiring that contracts be let to the lowest and best bidder was designed for the benefit and protection of the public and not the bidders.
Sevier, 98 S.W.2d at 679 (internal quotation omitted).
Recently, the United States Court of Appeals for the Eighth Circuit and the Missouri Court of Appeals acknowledged these general principles .regarding unsuccessful bidder standing; nevertheless, they have concluded -that, under Missouri law, unsuccessful bidders that challenge the award of the contract to another bidder on the basis that they were denied a fair and equal opportunity to compete do have standing to'assert their claims. See Metro. Express Servs., Inc. v. City of Kansas City, Mo, 23 F.3d 1367 (8th Cir.1994); Brannum v. City of Poplar Bluff, 439 S.W.3d 825, 829 (Mo.App.2014); Pub. Commc’ns Servs., Inc. v. Simmons, 409 S.W.3d 538, 547 (Mo.App.2013).
In Metropolitan Express, 23 F.3d at 1371, a potential bidder alleged that the city’s disregard of the proper competitive bidding process denied the potential bidder an opportunity to bid on a contract for an airport concession agreement. The federal district court concluded that the potential bidder lacked standing based on Missouri cases denying standing to unsuccessful bidders. Id. at 1370,- In reversing the district court’s judgment, the Eighth Circuit found that Missouri courts had yet to decide whether an unsuccessful bidder has standing to challenge a contract when the public contract allegedly was not awarded in accordance' with competitive bidding procedures. Id. at 1371. The Eighth Circuit .went on to explain that most jurisdictions have found that “an unsuccessful bidder has standing to challenge a contract if the bidding procedure did not permit all bidders to compete on equal terms.” Id. The Eighth Circuit then examined Missouri’s standing requirements and noted that Missouri courts have held that
Relying on Metropolitan Express, the Missouri Court of Appeals in Simmons, 409 S.W.3d at 547, held that an unsuccessful bidder that raised' claims regarding the fairness and lawfulness of the bidding'process had standing to challenge the award of a public contract. In Simmons, an unsuccessful bidder filed suit after the state awarded a contract for providing inmates with telephone services to-another bidder. Id. at 540-41.' On appeal, the successful bidder argued that the unsuccessful bidder lacked standing to file the suit. Id. at 545. The court of appeals acknowledged that an unsuccessful bidder “generally lacks standing to challenge the award of [a] contract to another bidder.” Id. at 546. Despite this general rule, however, the court favorably cited Metropolitan Express for the proposition that “an unsuccessful bidder has standing to challenge a contract award under Missouri.law if the bidding procedure did not permit all bidders to compete on equal terms.”- Id'. ■ (internal quotation omitted). The court then. concluded that the unsuccessful bidder had standing because it alleged that it-had been denied a fair opportunity.to bid and,-therefore, had challenged the fairness and lawfulness of the bidding-process.
Following Simmons, the Missouri Court of Appeals in Brannum, 439 S.W.3d at 830, again recognized that unsuccessful bidders have standing to challenge the award of á contract if all bidders were not permitted to compete on equal terms. In doing" so, the court stated that, ordinarily, an unsuccessful bidder “does not Have a special pecuniary interest in the award of [a] contract to it, and therefore generally lacks standing to challenge the award of the contract to another bidder.” Id. at 829 (internal quotation omitted). Relying on Simmons, however, the court found that, under limited circumstances, .Missouri courts have “recognized a losing bidder’s standing tó challenge the award, óf a public contract .,. where a public’ entity’s bidding procedure did not permit all bidders to compete on equal terms; or ... where the lowest bid is rejected fraudulently, corruptly, capriciously, or without rqason.” Id. at 830 (internal quotation omitted).
The school district argues that Simmons and Brannum should not be followed because they conflict with prior precedent in Sevier and La Mar that only taxpayers have standing to challenge the award of a public contract because the purpose of public bidding laws is to protect the public. The holdings of Sevier and La Mar, however, do not conflict with the proposition that unsuccessful bidders have' standing to challenge a public contract on grounds that they were denied a fair and equal opportunity to compete in the bidding process.
In Sevier, an unsuccessful bidder sought a writ of mandamus compelling the award of a public contract to it because it was the lowest bidder. 98 S.W.2d at 678. In finding that the unsuccessful bidder was not entitled to mandamus relief, this Court held that an unsuccessful bidder lacked a private pecuniary interest in the contract and, therefore, could not bring an action to compel the awarding of a public contract to it. Id. at 681. Likewise, the unsuccessful bidder in La Mar challenged the award of a public contract on grounds that, as the lowest responsible bidder, it was entitled to the contract. 542 S.W.2d at 570. In affirming the dismissal of the action,, the court of appeals held that the unsuccessful bidder was not deprived of anything to which it was legally entitled and, therefore, failed to state a cause of action. Id. at 570-71. Accordingly, Sevier and La Mar stand for the proposition that an unsuccessful bidder cannot bring an action to compel the awarding of a public contract to it because the unsuccessful bidder has no clear, legal right or interest in having a competitively bid public contract awarded to it. Therefore, the holdings in Sevier and La Mar do not conflict with Simmons and Brannum, in which the unsuccessful bidders sought a-fair and equal opportunity to compete in the bidding process.
The school district argues that, regardless of whether Byrne & Jones sought the award of the contract, Byrne & Jones still lacks standing because it did not bring the action in the interest of the public or as a taxpayer. In support of its argument, the school district relies upon the following language in La Mar:
The rejection of the lowest bid must not ■ be made fraudulently, corruptly, capriciously or without reason. The officials must exercise and observe good faith and accord all bidders just consider*855 ation, avoiding favoritism and corruption. If any of these standards are violated the public, as the real, moving party, may bring mandamus to enforce cancellation of the contract and its award to the lowest responsible bidder.
Id. at 571. The school district also points to language in Sevier that if a public contract is not entered into in good faith, “the law affords taxpayers a complete remedy for its cancellation, but private individuals, as unsuccessful bidders, cannot maintain a suit in their own behalf to cancel the award as made and compel the awarding of the contract to them.” 98 S.W.2d at 681.
Judicial decisions “must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.” Parker v. Bruner, 683 S.W.2d 265, 265 (Mo. banc 1985) (internal quotation omitted). Although the school district reads the language in Sevier and La Mar broadly to mean that only taxpayers have standing to challenge the award of a public contract, such language was used in the context of dispelling the notion that the unsuccessful bidder, as the lowest or best bidder, has some statutory right or interest in having the contract awarded to it. If the courts’ language was intended to address circumstances beyond the facts of those cases, it is dicta. Id. Here, Byrne & Jones is not alleging that it has some legal right or interest in having the contract awarded to it. It- contests the award of the contract on grounds that, due to collusion and favoritism, it was not afforded a fair and equal opportunity to compete in the bidding process. Such arguments were not raised in Sevier or La Mar, nor has the school district cited any case from this Court finding that an unsuccessful bidder lacked standing to challenge the bidding process and the contract awarded therefrom, on such grounds.
Accordingly, all bidders have a legally protectable interest in a fair and equal bidding process and are within the zone of interests that the school district’s competitive bidding statutes seek to regulate in that competitive bidding statutes are designed to ensure that all bidders have 'a fair and equal opportunity to compete in the bidding process. See Brannum, 439 S.W.3d at 830; Simmons, 409 S.W.3d at 546-47; City of Maryville, 132 S.W. at 48. Therefore, unsuccessful bidders that are denied a fair and equal opportunity to compete in a public bidding process have standing to challenge’ the award of the contract. Accordingly, Byrne & Jones had standing to challenge the school district’s award of the contract to ATG. Sports in that Byrne & Jones alleged that the school district’s favoritism toward and collusion with ATG Sports prevented Byrne & Jones 'from having a fair and equal opportunity to compete.
The Requested Relief
In arguing that it had standing to challenge the award of.the contract, Byrne & Jones asserted that it was entitled to injunctive and monetary relief. In its petition, Byrne & Jones requests that the school district be enjoined “from entering into any contract with ATG Sports .,. for the design and construction of the stadium facility project[.]” As conceded at oral argument, however, Byrne & Jones did not seek a preliminary injunction or temporary restraining order to prevent the school district from entering into the contract with ATG Sports. The school district and ATG Sports, therefore, entered into a contract that resulted in ATG Sports building and completing the athletics stadium that
It would be impossible for this Court to enjoin the school district from entering into a contract with ATG Sports because such a contract was, in fact, entered into and the project has since been completed. Mootness is a threshold question that may be addressed by this Court sua sponte. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.” Id. (internal quotation omitted). Byrne & Jones’ request for injunctive relief, therefore, is moot. See id.
Additionally,, Byrne & Jones sought an award of its bid preparation costs. Byrne & Jones argues that it should be allowed to recover its bid preparation costs because it would encourage more bidders to participate in the bidding process by ensuring public entities afford bidders an equal opportunity to compete that would, in turn, benefit the public interests that section 177.086.2 seeks to protect. By-requesting its bid preparation costs, Byrne & Jones is essentially asking this Court to create a new cause of action. Section 177.086.2 provides no authority for a new cause of action or recovery of such damages. This Court will 'not interpret a statute to' establish a private cause of action without cléar implication of the legislature’s intent to do so. Dierkes v. Blue Cross & Blue Shield of Mo., 991 S.W.2d 662, 667 (Mo. banc 1999). Byrne & Jones, therefore, is not entitled to recover its bid preparation costs under the ■ statute.
Conclusion
Byrne & Jones had standing to challenge the award of the contract to ATG Sports because it alleged that it was denied a fair and equal opportunity to compete in the bidding process for the stadium project. Nevertheless, the trial court did not err in dismissing Byrne & Jones’ petition because Byrne & Jones was not entitled to the requested relief. Consequently, this Court affirms the trial court’s judgment.
. When reviewing a motion to dismiss, this Court assumes that the facts alleged in the petition are true. Lebeau v. Commissioners of Franklin Cnty., Missouri, 422 S.W.3d 284, 288 (Mo. banc 2014).
. Byrne & Jones asserted two other claims in its petition that were also dismissed by the trial court. On appeal, Byrne & Jones does not contest the dismissal of its other two claims, so this Court does not address them.
. While the trial court acknowledged the holding in Simmons that unsuccessful bidders have standing under limited circumstances, it found the present case distinguishable in that Simmons did not .involve the application or interpretation of the competitive bidding scheme set out in section 177.086.2. The court’s holding in Simmons, however, was not premised on- the competitive bidding statute at issue. Rather, as previously explained, the court in Simmons found the unsuccessful bidder had standing because the unsuccessful bidder alleged it was denied a fair and equal opportunity to compete in the bidding process. 409 S.W.3d at 547.
. After explaining that unsuccessful bidders have standing to challenge the award of a public contract under limited circumstances, the court of appeals in- Brannum went on to find that file unsuccessful bidder lacked standing because the record established that the-unsuccessful bidder had a fair and equal op-pórtunity to Compete. 439 S.W.3d at 831. In dping so, the court erroneously conflated the issue of standing with deciding the merits of the unsuccessful bidder’s claim that it had been denied a fair and equal opportunity to compete. Id. at 831. The court in Brannum, therefore, incorrectly found that the unsuccessful ■ bidder lacked standing. It correctly
. Byrne & Jones further relies on cases from other jurisdictions in which courts have permitted the recovery of bid preparation costs. See Owen of Georgia, Inc. v. Shelby Cnty., 648 F.2d 1084, 1095 (6th Cir.1981); Meccon, Inc. v. Univ. of Akron, 126 Ohio St.3d 231, 933 N.E.2d 231, 232 (Ohio 2010); Kajima/Ray Wilson v. Los Angeles Cnty. Metro. Transp. Auth., 23 Cal.4th 305, 96 Cal.Rptr.2d 747, 1 P.3d 63, 71-72 (2000); N. Twin Builders, LLC v. Town of Phelps, 334 Wis.2d 148, 800 N.W.2d 1, 2 (Wis.App.2011). The majority of these cases, however, are distinguishable from the present case in that monetary damages’ were awarded because the trial court wrongfully denied the unsuccessful bidder’s timely request for injunctive relief, see Mec-con, 933 N.E.2d at 235, or the unsuccessful bidder was entitled to monetary relief under a theory of promissory estoppel. See Owen, 648 F.2d at 1096; Kajima/Ray, 23 Cal.4th at 319, 96 Cal.Rptr.2d 747, 1 P.3d 63.
Concurrence Opinion
Concurring in Result
The trial court dismissed the petition filed by Byrne & Jones Enterprises, Inc. (“B&J”) on the ground that B&J lacked standing. Even though the trial court’s
B&J’s only other claim was a prayer for an injunction to prevent Monroe City R-l School District (the “District”) from going forward with its construction project on the basis of the contract it let to the winning bidder, ATG Sports, Inc (“ATG”). This claim (like B&J’s claim for bid preparation costs) was based on allegations that the District failed to comply with the bidding procedures in section 177.086.2 when awarding the contract to ATG. But this Court cannot reach the question of whether B&J has standing to bring such a claim because the relief sought is no longer available, i.e., because B&J’s claim for in-junctive relief is moot.
[T]his court has said that [cjourts are not organized and maintained for the purpose of vindicating the actions of parties in bringing lawsuits or to settle abstract propositions of law, where no relief can be granted. That some relief is sought which may be granted is the only reason the courts recognize for the prosecution of éáuses. If no relief can be granted, either because it appears that such relief has already been obtained, ' or because the situation has so changed that the relief sought cannot be granted, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted, if it had not already been granted or could have been granted but for changed conditions.
Gershman Inv. Corp. v. Danforth, 475 S.W.2d 36, 38 (Mo. banc 1971) (emphasis added) (quotations and citations omitted). See also Dotson v. Kander, 435 S.W.3d 643, 644 (Mo. banc 2014) (“To exercise appellate jurisdiction, there must, be an actual controversy that is .‘susceptible of some relief..’ When an event occurs that makes .a court’s decision unnecessary or makes granting effectual relief impossible, the case is moot and should be dismissed.”) (citations omitted).
The majority opinion concludes that, because B&J’s claim for injunctive relief is moot, there is no basis to vacate the trial court’s dismissal and remand. I agree. Unfortunately, however, the majority opinion then goes on at some length to explain why — if B&J’s claim for injunctive relief were not moot — B&J should have had standing to pursue it. This is exactly the type of wholly advisory opinion that Gersh-man, Dotson, and a host of other cases on the effect of mootness are meant to prevent-. I write separately to explain not only that the majority opinion’s ruminations about this subject are dicta in this case, but also that they should not be followed in future cases.'
State bidding statutes — including section 177.086.2 — are enacted to protect the public, not the bidders. As a result, precedent of long standing explains that only taxpayers ' have standing to enforce those laws once a contract is awarded. B&J is not (and does not claim to be) a taxpayer of
B&J’s petition references “the competitive bidding process required by law” but fails to cite any state statutes or local regulations applicable to the District’s project. On appeal, B&J bases its claim solely on section 177.086, which provides in pertinent part:'
No bids shall be entertained by the school district which are not made in accordance with the specifications furnished by the district and all contracts shall be let to the lowest responsible bidder complying with the terms of the letting, provided that the district shall have the right to reject any and all bids.
§ 177.086.2 (emphasis added).
B&J claims that it has a legally protect-able interest sufficient to give it standing to seek an injunction to prevent the District from proceeding with its construction project under the contract it let to ATG based on the District’s alleged violation of section 177.086.2. This Court properly rejected such claims more than a centuiy ago, •
It is, indeed, asserted that the defendant rejected the plaintiffs’ bid ‘without cause, arbitrarily and capriciously, through favoritism and bias.’ But, if the defendant had the absolute right to reject any and all bids, no cause of action would arise to plaintiffs because of the motive which led to the rejection of their bid. The right to reject the bids was unconditional. Defendant was entitled to exercise that right for any cause it might deem satisfactory, or even without any assignable cause..
Anderson v. Bd., etc., of Pub. Sch, 122 Mo. 61, 27 S.W. 610, 612 (1894) (emphasis added).
Later, this Court expanded on Anderson in State ex rel. Doniphan State Bank v. Harris, 176 S.W. 9 (1915). There, the Court held that a party “has no right to maintain this proceeding simply in its capacity as an unsuccessful bidder, but must maintain it, if at all, in its role as a taxpayer in Ripley County. In that capacity it represents the public, and it is the interest of the public which is to be considered, not that of relator as a bidder for the funds.” Id. at 10 (citation omitted, emphasis added).
Anderson and Harris formed the basis for State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W.2d 677, 680 (1936), which remains this Court’s leading decision on the issue of standing to enforce public bidding laws. Sevier holds that — when a losing bidder is not also a taxpayer — the losing bidder lacks standing to challenge the award of a public contract to another based on a violation of public bidding laws because:
it was incumbent upon them to allege a special pecuniary interest in the matter, showing a clear legal right to the relief asked, which they did not and cannot do, for the reason that the rejection of their bid did not give them any private right which they could enforce by mandamus or otherwise.
Sevier, 98 S.W.2d at 679 (emphasis added).
Sevier reaches this conclusion on two grounds, both of which are applicable to and dispositive of the question of standing in this case. First, if a public entity has authority to reject any bid (or all the bids), a losing bidder has no legally protectable interest in the outcome of the bidding process (or, at. least, no interest that is different, from the taxpayer’s interest). Id. See also Regan v. Iron County Court, 226 Mo. 79, 125 S.W. 1140, 1142 (1910) (not even the “highest and best bidder” has a right to the contract when the statute expressly gives the public entity authority to reject
In La Mar Const Co. v. Holt County, R-II Sch. Dist., 542 S.W.2d 568, 570 (Mo.App.1976), the court of appeals applied Sevier and held that a losing bidder has no standing to challenge a school district’s compliance with section 177.086.2 after the contract is awarded. Following the two-step analysis in Sevier, La Mar first holds that the losing bidder lacked standing because it has suffered no injury to a legally protected interest. Id. (noting Anderson “recognized the principle of law that where a public body reserves the right to reject any and all bids that are submitted to it they are empowered to do just that and by rejecting a bid they create no vested interest or property right in the rejected bidder”). See also State ex rel. Page v. Reorganized Sch. Dist. R-VI of Christian County, 765 S.W.2d 317, 321 (Mo.App.1989) (even the lowest and best bidder has no right to relief under section 177.086.2). Second, La Mar holds that section 177.086.2 “clearly is intended to safeguard the interest of the public and is not designed to shelter the rights of individuals, i.e., the unsuccessful bidder.’’ La Mar, 542 S.W.2d at 571. See also O. J. Photo Supply, Inc. v. McNary, 611 S.W.2d 246, 248 (Mo.App.1980) (competitive bidding laws “are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders”).
Accordingly, La Mar holds that only a taxpayer — not a losing bidder that is not otherwise a taxpayer — has standing to challenge a school district’s compliance with section 177.086.2 after the contract is awarded: -
La Mar has not brought this suit as a taxpayer or as a representative of other taxpayers but rather has sought relief to enforce the performance of an alleged public duty to protect an alleged private right. It is necessary for La Mar to allege a private, pecuniary interest in the matter but as an unsuccessful bidder it has no private, pecuniary interest in this matter which the law will recognize and enforce. As an unsuccessful bidder, La Mar was not deprived of anything to which it was legally entitled and therefore cannot state a cause of action.
La Mar, 542 S.W.2d at 570-71 (citation omitted, emphasis added). See also Sevier, 98 S.W.2d at 681.
B&J argues that a losing bidder should have standing to enforce the provisions of section 177.086.2 after the contract is awarded because, as noted in La Mar, “[t]he rejection of the lowest bid must not be made fraudulently, corruptly, capriciously or without reason.” La Mar, 542 S.W.2d at '571. Instead, “[t]he officials must exercise and observe good faith and accord all bidders just consideration, avoiding favoritism and ' corruption.”' Id. The majority opinion (albeit in dicta) agrees.
But the majority opinion’s conclusion that B&J has standing to seek an injunction (or would have had such standing had this claim not been moot) because B&J was “denied a fair and equal opportunity in the bidding process” confuses two unrelated concepts, i.e., the basis for a claim and standing to bring that claim. Invoking La Mar, the majority opinion concludes that B&J’s petition alleges a sufficient basis for a claim of collusion and favoritism against the District. .This is correct — the petition
La Mar, Sevier, and Anderson cannot be distinguished from this case on the ground that B&J is challenging the District’s process, not its decision to award the contract to ATG,-because this is not supported by B&J’s allegations. Where B&J alleges that the District “acted arbitrarily, capriciously, unfairly, and in violation of the competitive bidding process required by law,” the allegation expressly states that the District did so by “accepting the bid of ATG[.]” [Emphasis added.] Similarly, where B&J alleges that the District “did not act in good faith, or in the best interest of the public ... [and] in collusion with ATG and with personal favoritism for ÁTG,” the allegation expressly states tliat the District committed these infractions by “awarding the project to ATG[.]” [Emphasis added.] Even though B&J alleges that the District did not give B&J a “fair opportunity” to compete against ATG, B&J does not claim that section 177.086.2 gives it that right.- Such a claim would be unwarranted because the statute expressly authorizes the District to reject “any bid,” • including the bid from B&J.
Nothing in section 177.086 (or the Missouri cases construing this or any other competitive bidding statute) draws a distinction between the bidding process and the award of a contract. All requirements imposed by state bidding laws are concerned with process, and those requirements are imposed solely “for the benefit and protection of the public and not the bidders.” Sevier, 98 S.W.2d at 679. So, if the contracting entity is permitted to reject “any and all bids,” an individual bidder is not permitted to wait until the bidding process is over and the contract is awarded before claiming entitlement to any particular process or consideration.
Great reliance' is placed',' upon a' lone federal case holding that, under Missouri law, “an unsuccessful bidder has standing to challenge a contract that was not fairly bid.” Metro. Express Servs., Inc. v. City of Kansas City, Mo., 23 F.3d 1367, 1371 (8th Cir.1994). This conclusion is neither binding nor persuasive, however, because it is based solely on Strieker; and the question of losing-bidder standing' was never at issue in Strieker because the state conceded that at least some of those challengers were taxpayers. Stricker, 858 S.W.2d at 775 (whether the non-taxpayer losing bidder “has standing as a participant in the public contract process is of no consequence to this action and is not addressed by this court”).
To ignore Missouri' precedent and conclude, (even in dicta) that a losing bidder can 'have standing to seek an injunction based on alleged violations of state bidding laws after the contract has been let is to create.a new remedy for unsuccessful bidders out of whole cloth. That is a legislative process,
Ultimately, the rationale for giving standing ’ to “all bidders ... within the zone of interests” is not persuasive. It is not self-evident that the century-old taxpayer standing limitation in these cases is keeping a material number of meritorious claims out of the courthouse. Losing bidders who are taxpayers can sue, and those who are not taxpayers should have no difficulty in recruiting a taxpayer to join the suit if there is a manifest injury to the public’s interests.
Conclusion
Because a losing bidder has no legally protectable interest in the enforcement of section 177.086.2 after the contract is awarded (or at least no interest distinct from the public’s interest that the statute was enacted to protect), and because B&J
. Unless otherwise stated, all statutory refer-enees are to RSMo Supp. 2013.
. To be clear, the prohibitions against capriciousness, collusion, and favoritism described in La Mar and similar cases are meant only to identify those circumstances in which a taxpayer may challenge the award- of a public contract from those in which the award is within the entity’s unreviewable discretion. Compare State ex rel. Stricker v. Hanson, 858 S.W.2d 771, 778 (Mo.App.1993) (enjoining award of contract to nonresponsive bidder), with KAT Excavation, Inc, v. City of Belton, 996 S.W.2d 649, 652 (Mo.App.1999) (upholding award of contract as proper exercise of discretion). See also Regan, 125 S.W. at 1140 (discussing discretion afforded by competitive bidding statutes generally); Page, 765 S.W.2d at 322 (same).
. I do not mean to suggest that a bidder or potential bidder lacks standing to seek declaratory or injunctive relief based upon alleged violations of a state bidding' law while the bidding process is ongoing. That question, like the question of losing-bidder standing after the contract is awarded^ is not before the Court.
. In addition, the plaintiff in Metropolitan Express was a not a losing bidder because it was not permitted to bid at all. ■ ■
. Reliance on Pub. Commc’ns. Servs., Inc. v. Simmons, 409 S.W.3d 538, 546 (Mo.App.2013), also is misplaced because it, too, relies on Metropolitan Services for the , proposition that an unsuccessful bidder has" standing to challenge a contract award under Missouri law “if the bidding procedure did not permit all bidders to compete on equal terms.” Id. at 546 (quoting Metro. Express, 23 F.3d at 1371). As explained'above,'this is a misstatement of Missouri law. ' *
. Many states have enacted statutory or. administrative remedies allowing losing bidders to challenge a bidding process both before and after the contract has been let. Ordinarily, these remedies are administrative and, if such administrative remedies are pursued in a timely fashion, subject to judicial review. Moreover, some (but certainly not all) permit a stay of the contract in the .event of a timely protest. See Ala. Admin. Code r, 355 — 4—1— ,04(14) (requiring “[ajny bidder- adversely affected” to file a notice of protest and a formal written protest seven days thereafter); Ala. Code § 41-16-31 .(should a protest prove unsuccessful, a "bona fide unsuccessful bidder" may “bring a civil action in the appropriate court to enjoin execution of any contract entered into[.]”); Alaska Stat. §§ 36.30.560— .699 (providing for both a pre- and post-award protest procedure by "an actual or prospective bidder or offeror” either before the award or within 10 days thereafter); Alaska Stat. § 35.30,685 (providing for appeal to the superior court for certain final bid protest decisions); Ariz. Admin. Code R2-7-A901-A9J.1 (permitting any "interested party” to bring a pre- or post-award protest); Ark. Code .§ 19-11-244 (permitting protest brought within 14 days by "[a]ny actual or prospective bidder, offeror, or contactor”); Ark, Code § 19 — 11—244(g) (providing successful protestors with the right to pursue bid and proposal cpsts through the Arkansas Claims Commission and allowing for review of final protest decision by mandamus or injunctive relief); California’s bid protest procedures vary depending on the goods at issue, and the type of solicitation, although California’s rules do not allow for a pre-award protest, see, e.g., Cal. Pub. Cont. Code § 10306 (covers the state’s acquisition of goods and .services), § 10345 (covers consulting and service contracts), § 12102.2(g) (covers information, technology goods and services), and § 12126 (provides for an “alternative protest procedure”). In . California, review, of alternative protests is limited, Cal. Code Regs, title 1,§ 1438, while administrative mandamus review is available otherwise, Cal. Civ. Proc. Code § 1094.5, or under a writ of mandate procedure, Cal. Civ. Proc. Code § 1085; Colo. Rev. Stat. § 24-
. See, e.g., Stricker, 858 S.W.2d at 775; KAT Excavation, 996 S.W.2d at 650; see also Harris, 176 S.W. at 10 ("Relator has no right to maintain this proceeding simply in its capacity as an unsuccessful bidder, but must maintain it, if at all, in its role as a taxpayer in Ripley county. In that capacity it represents the public, and it is the interest of the public which is to be considered, not that of relator as a bidder for the funds.”) (citation omitted).