CC_Minutes_2003_0127 - Laserfiche WebLink

Home

Mr. Neal Beets January 27, 2003 Page 4 Lake City Sanitation, Inc., 769 F.2d 517 (8th Cir. 1985). A legitimate claim of entitlement in a property interest can arise fronl procedures established by state statutes or regulations. Id. The Minnesota Court of Appeals has determined that under Minnesota law governing competitive bidding on public contracts, the lowest responsible bidder in conlpliance with the bidding specifications and procedures has a legitimate expectation in being awarded the contract once the government body makes the decision to award the contract. Schwandt Sanitation v. City of Paynesville, 423 N.W.2d 59 (Minn. App. 1988). Minnesota law governing competitive bidding on public contracts does not usually apply to the designation of legal newspaper. Instead, as explained above, typically a city weighs several factors under the scheme established by Section 331 A.04. But here, the City acted pursuant to special legislation, which allows it to designate "the newspaper offering to publish the notices at the lowest cost," so long as (2) for one year prior to designation, at least 25 percent of the newspaper's circulation was within the City limits. 1997 Minn. Law Chap. 56, H.F. 356, S 2. Because the City acted under the special legislation, an argunlent could be made that, like under the bid law, a newspaper offering the lowest cost has a legitimate expectation that it will be designated as the legal newspaper once the City Council makes the decision to designate the newspaper. If the City now designates any newspaper other than the Pioneer Press, the Pioneer Press may seek damages for violations of its due process rights pursuant to S 1983 of the Civil Rights Act, as well as for attorney fees under S 1988 of that Act. As with the potential breach-of-contract claim discussed above, the Pioneer Press may not, ultimately, prevail in an action for breach of its due process right. Nevertheless, the cost of defending against such a lawsuit could be significant. C. Other Considerations It may also bear referencing First Amendment rights that could come into play under various fact scenarios. There is an established body of law that precludes a municipality from retaliating against an employee for the exercise of that employee's First Amendment rights. This law has been extended and applied in circumstances involving non-employees who may contract, or have a legitimate expectation of contracting opportunities, with a municipality. That being said, were there any facts to ever suggest that the change in designation of a legal newspaper had any relation to one newspaper's coverage of the City in favorable or unfavorable terms, those facts could implicate First Amendment rights and lead to a claim for violation of those rights. Even if no contract were formed, and even if the Pioneer Press did not pursue any legal action against the City, your question raises a more general public policy consideration. Parties submitting offers in response to government solicitation often expend significant time and resources in preparing their offers. Parties that do so expect that the government will act with predictability and fairness in this process. Allowing a potential contractor to submit a new proposal once it has had an opportunity to view all other contractors' proposals, after the Council acted to accept another proposal, could undermine confidence in the fairness, predictability and propriety of the City Council's deliberative processes. If potential contracting parties and/or suppliers were to lose confidence in the City Council's process, they may simply decide not to expend the time and resources in making a proposal