United States v. Vibanco-Sanchez

*The HONORABLE JOSEPH F. BATAILLON, United States District Judge for
the District of Nebraska, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2096
___________
Delk Construction Company, Inc., *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Leo George Munford, Jr., *
* [UNPUBLISHED]
Defendant - Appellee. *
___________
Submitted: January 12, 2001
Filed: February 16, 2001
___________
Before LOKEN and HEANEY, Circuit Judges, and BATAILLON,* District Judge.
___________
PER CURIAM.
The Arkansas State Building Services agency (SBS) solicited bids for a
construction project, Phase One of the University of Arkansas Community College at
Batesville. Matson, Inc., submitted the low bid of $1,687,000. Leo George Munford,
Jr., Director of SBS’s Construction Section, rejected that bid because it did not comply
with the Project Manual requirement that the roofing subcontractor, Snyder Roofing,

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1The HONORABLE GEORGE HOWARD, JR., United States District Judge for
the Eastern District of Arkansas.
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have an Approved Applicator’s Certificate either on file with SBS or accompanying the
bid. That made Delk Construction Company the apparent lowest responsible bidder
at $1,732,144, an amount that was above the $1,725,000 appropriated for the project.
After the College complained that the low bid should not be rejected, Munford waived
the Matson bid defect as a “procedural formality,” and SBS awarded the contract to
Matson. Delk then commenced this action against Munford under 42 U.S.C. § 1983.
After trial, Delk’s substantive due process claim was submitted to a jury, which found
“that Munford’s failure to award Delk the contract was truly irrational or shocks the
conscience” and awarded damages of $90,000. The district court1 granted Munford
judgment as a matter of law, and Delk appeals. We affirm.
“[T]he substantive component of the Due Process Clause is violated by
executive action only when it can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.” County of Sacramento v. Lewis, 523 U.S. 833,
847 (1998) (quotation omitted). To prevail on such a claim, “the plaintiff must allege
something more than that the government decision was arbitrary, capricious, or in
violation of state law.” Martin v. City of Brentwood, 200 F.3d 1205, 1206 (8th Cir.
2000) (quotation omitted). Here, the relevant statute permits the contracting authority
to reject all bids and to waive any formalities, and provides that the contract shall be
awarded to the lowest responsible bidder “only if it is the opinion of the authority that
the best interests of the taxing unit would be served thereby.” ARK. CODE ANN. §§ 22-
9-203(c)(1)(F) and (d).
The College wanted the contract awarded to Matson, whose bid was within the
project appropriation and some $45,000 less than Delk’s. Snyder Roofing in fact had
an Approved Applicator’s Certificate, and at least one other bidder submitted a copy,
though Matson did not. In these circumstances, it was not arbitrary or irrational for

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Munford to conclude that the missing certificate was a formality that could be waived,
and that the best interests of the College would be served by awarding the contract to
the lowest bidder, Matson. Thus, Munford’s decision does not even come close to
transgressing the conscience-shocking substantive due process standard. Indeed, we
strongly suspect it did not violate state law. See Conway Corp. v. Construction Eng’rs,
Inc., 782 S.W.2d 36 (Ark. 1989).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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