The City of Cottonwood (“City”) solicited requests for proposals for a construction project. A losing bidder (“Contractor”) protested the bid award and sued the City, asking the Superior Court for a writ of mandamus for the City to rebid the contract pursuant to A.R.S. § 34-603, and for an award of attorneys’ fees and costs to Contractor.
The City elected to perform the work itself and terminated its contract with the winning bidder. Arguing that Contractor’s mandamus action was therefore moot, the City then filed a motion to dismiss or, in the alternative, for summary judgment. Contractor opposed the motion on the grounds that the City’s actions would likely recur, and the Superior Court denied the City’s motion.
Following an evidentiary hearing and additional briefing, the Superior Court ruled in favor of Contractor. The court determined that (1) the City had terminated the contract intentionally to moot the pending mandamus action, (2) the City had violated the procurement statute requirements of A.R.S. § 34-603, and (3) Contractor would have been entitled to the mandamus relief it had requested had the City not already terminated the bid contract. Contractor subsequently moved for a fee award, which was partially granted over the City’s objection. The City appealed the award of fees.
The Arizona Court of Appeals affirmed.
Under A.R.S. § 12-2030, a party is entitled to a fee award if (1) the party prevailed by an adjudication on the merits (2) in a civil action (3) brought by the party against the State or a political subdivision of the State (4) to compel a State officer or political subdivision to perform a duty imposed by law. For a party to satisfy the first requirement in a normal case, the party must obtain an order from the court compelling a state officer or political subdivision to perform a duty required by law.
A mandamus proceeding, however, is subject to equitable principles. And equity will not permit a wrong to be without a remedy. The City could not deprive Contractor of the remedy of attorneys’ fees by mooting the case. Based on equitable principles and the unique circumstances of the case, the Superior Court did not abuse its discretion by awarding fees pursuant to A.R.S. § 12-2030.
The appellate court therefore affirmed the Superior Court’s fee award and also awarded Contractor its fees and costs on appeal.
Judge Norris authored the opinion; Presiding Judge Swann and Judge Barker concurred.
Posted by: Mark P. Hummels