Duty Free Air & Ship Supply Co. v. City of Atlanta

Melton, Justice.

In April 2002, using a procedure for solicitation of competitive sealed proposals, the City of Atlanta issued a Request for Proposals (RFP) to construct and operate an expanded area of duty free shops in the international concourse at Hartsfield-Jackson International Airport. In response, Duty Free Air & Ship Supply Co. (DFASS) and Atlanta Duty Free, LLC (ADF) submitted proposals. The City’s Chief Procurement Officer selected DFASS, determining at the time that it was the most responsible and responsive proponent. ADF then appealed the selection to an administrative hearing officer who affirmed the selection of DFASS. Thereafter, the superior court reviewed the case on certiorari, reversed the decision of the administrative hearing officer, but determined that it could not grant any award of a contract. DFASS then appealed the superior court’s ruling to the Court of Appeals, which reversed the ruling because ADF failed to file a valid bond with its petition for certiorari. Duty Free Air & Ship Supply v. Atlanta Duty Free, 275 Ga. App. 381 (620 SE2d 616) (2005).

While the case was pending before the Court of Appeals, the City’s Chief Procurement Officer informed DFASS that the City was going to cancel the RFP and conduct a solicitation for proposals in a new, revised RFP. Nonetheless, when the Court of Appeals issued its opinion, DFASS demanded that the City grant it the RFP contract. Instead, the City issued the new RFP, and DFASS filed a petition for writ of mandamus, seeking to compel the City to immediately execute a contract, which it argued had become vested and binding. To the extent that any remaining steps were required prior to execution, DFASS contended that all of these steps were ministerial functions and suitable for a grant of mandamus. The trial court denied the writ of mandamus, and this appeal followed.

The narrow query now before this Court is simply whether mandamus is an appropriate remedy in this case. Based on the Legislature’s explicitly stated intention in the Georgia Local Government Public Works Construction Law, OCGA § 36-91-1 et seq. (“Construction Law”) that local laws and ordinances control the manner of the City’s execution of and entry into contracts, we find that DFASS was not entitled to a writ of mandamus requiring the City to execute a contract in its favor as neither the Mayor of Atlanta nor the City Council of Atlanta had exercised their discretionary authority to approve any award which may or may not have resulted from the competitive sealed proposals process in this case.

*174It is axiomatic that “[mjandamus is a remedy designed to compel the doing of ministerial acts. Mandamus is not an appropriate remedy to compel the undoing of acts already done or to compel the exercise of official discretion.” Speedway Grading Corp. v. Barrow County Bd. of Commrs., 258 Ga. 693, 695 (1) (373 SE2d 205) (1988).

The Construction Law explicitly contemplates the joint application of its terms with local law and ordinances. It states unequivocally: “Municipalities and consolidated governments shall execute and enter into contracts in the manner provided in applicable local legislation or by ordinance.” (Emphasis supplied.) OCGA § 36-91-20 (a). Accordingly, an award which might be made to the most responsible and responsive offeror of an RFP pursuant to OCGA § 36-91-21 (c) (1) (C) would remain subject, under OCGA § 36-91-21 (a), to requirements of local law governing the City’s execution and entry into any contract emanating from the initial award. The Legislature, therefore, clearly intended for the Construction Law to be supplemented by local law such as that contained in the Code of the City of Atlanta (“City Code”) and the Charter of the City of Atlanta (“City Charter”).

With regard to the execution and entry into contracts such as the one in question, the City Code mandates that contracts for construction or services in excess of $100,000 must first be considered and approved by the City Council, City Code Section 2-1140. The City Charter emphasizes the importance of this approval, admonishing that “Contractual work related to any competitive sealed bid or proposal shall not be broken into components or parts so as to avoid the council’s approval of awards of greater than $100,000.00.” City Charter Section 6-402 (e). In addition, the City Code further indicates that any such contract must ultimately be approved and signed by the Mayor. City Code Section 2-176. It is undisputed that neither of these acts has occurred in this case.

The acts of the City Council and the Mayor in approving the alleged contract in question are discretionary. City Code Section 2-176

specifies that the Mayor is to execute a contract within 30 days of the resolution authorizing a contract, or inform the President of the City Council, in writing, the reasons why the Mayor has not executed a contract. Clearly, on its face, the ordinance gives the Mayor a choice to sign or not to sign a prepared contract, and [s]he does not have the specific duty to execute a contract. Accordingly, the failure to execute a contract is not a violation of a ministerial duty, but rather an act of discretion.

*175Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 482 (2) (614 SE2d 761) (2005). Mandamus cannot compel such a discretionary act. Speedway Grading, supra. Therefore, DFASS’s writ must fail.

In reaching its conclusion, the dissent exceeds the narrow question now before us regarding the propriety of the requested remedy. Instead, the dissent at p. 179 goes so far as to make its own determinations of fact that City officials are guilty of wrongdoing in this case to the level of creating a mockery because “the City . . . arbitrarily refuses to prepare, and the Mayor refuses to sign [the] contract.” These accusations are both inappropriate and wholly unnecessary given the explicit legislative mandate of OCGA § 36-91-20 (a). Despite the Legislature’s intent to respect the discretion afforded to governing bodies under local law, the dissent infuses the Construction Law with the exact opposite intent. In fact, under the dissent’s analysis, the discretionary decisions of the Mayor and the City Council of the City of Atlanta to approve contracts for goods or services in excess of $100,000 are reduced to nothing more than mere ministerial “formalities,” leaving the Chief Procurement Officer unchecked as the sole authority with the power to irrevocably bind the City to these contracts. The Legislature did not intend on such a result, be it for the City of Atlanta or any other local government. To the contrary, the Legislature intended for the Construction Law to complement local laws regarding the execution and entry into contracts, not to eviscerate them.

Judgment affirmed.

All the Justices concur, except Carley and Thompson, JJ., who dissent.