City of Dallas, Mayor Eric Johnson in His Official Capacity, and City Council Members Chad West, Casey Thomas, Carolyn Arnold v. Gadberry Construction Company, Inc. ( 2023 )

Reverse and Opinion Filed July 11, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00665-CV
CITY OF DALLAS, MAYOR ERIC JOHNSON IN HIS OFFICIAL
CAPACITY, AND CITY COUNCIL MEMBERS CHAD WEST, CASEY
THOMAS, CAROLYN ARNOLD, ADAM BAZALDUA, TENNELL
ATKINS, PAULA BLACKMON, ADAM MCGOUGH, JAYNIE SCHULTZ,
CARA MENDELSOHN, AND GAY WILLIS IN THEIR OFFICIAL
CAPACITIES, Appellants
V.
GADBERRY CONSTRUCTION COMPANY, INC., Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-04882
OPINION
Before Justices Molberg, Pedersen, III, and Miskel
Opinion by Justice Miskel
The City of Dallas and the other appellants (collectively, the City1) appeal
from two orders, one denying the City’s plea to the jurisdiction in part, the other
1
The appellants here are the City of Dallas and several of its officials, including its mayor and city
council members. A suit against a government official in his official capacity is merely another way of
pleading an action against the entity of which the official is an agent. City of El Paso v. Heinrich, 284
S.W.3d 366, 373 (Tex. 2009) (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007)).
Because Gadberry’s suit against the mayor and councilmembers was, “for all practical purposes,” a suit
against the City itself, see id., for convenience, we treat all the appellants as collectively included in the
term “the City.”
granting a temporary injunction to appellee Gadberry Construction Company, Inc.
The centerpiece of this appeal is the City’s argument that Gadberry did not establish
a waiver of immunity for the injunctive relief it sought under Texas Local
Government Code chapter 252. We agree. We therefore reverse and dismiss the
case.
I. BACKGROUND
In 2021, the City launched a construction project it called the “Hi Line
Connector Trail,” a plan to build several miles of new walking trails to connect two
existing trails near the north end of downtown Dallas. To assist with the project, the
City enlisted various partners, such as the Texas Department of Transportation
(TxDOT), the Circuit Trail Conservancy, and a landscape architecture firm called
SWA Group.
The City issued a request for sealed bids from contractors on September 29,
2021. The request for bids invited contractors to obtain copies of the bid documents
that would define and govern the project. Shortly after the request, Gadberry
attended a meeting where the City and SWA discussed the scope of the project,
which, according to the bid documents, would involve seventeen areas of work,
including a significant amount of road and traffic signal work in tight urban
corridors.
The bid documents contained multiple terms that are relevant to this appeal.
For one, they stated that the contract for the project would be awarded to “the lowest
–2–
responsible bidder.” The bid documents also provided that the City reserved “the
right to reject any and all Bids.” More particularly, the bid documents reserved the
City’s right to reject a bid for any one of several reasons, such as a contractor’s
history of baseless litigation, a contractor’s effort to collude with other contractors
to fix prices, or, most pertinent here, a contractor’s lack of the necessary integrity,
experience, qualifications, or financial capability to complete the project in the
manner required by the bid documents. An addendum that was expressly
incorporated by reference into the bid documents also reserved the City’s right to
request information on the contractors’ finances, equipment, personnel, and
experience. The same addendum warned that contractors “may be required to show
evidence that they have successfully completed an equivalent project within the past
three years to qualify for this work.”2
Ultimately, the City received six bids for the project. The lowest bid was
Gadberry’s at $9.2 million. Next lowest came from a company called The Fain
2
Still other documents reinforced the idea that the City would take a contractor’s experience and
competency into account, especially as they were demonstrated within the prior three years, in deciding
whether the contractor was a responsible bidder. These other documents provided that the contractor’s
record had to “reflect the experience of the firm in work of the same nature and similar magnitude as that
of the project for which bids have been received, and such experience must have been on projects completed
within the last three years prior to the date on which bids are received.”
However, Gadberry disputes whether these other documents formed a part of the bid documents
that governed the award of the project. Gadberry insists that these other documents were instead meant to
be used after the contract was awarded to evaluate any new contractors whose services became necessary
due to changes in the project as it developed. The City offers little clarification on this point.
Because the state of the record is less than perfectly clear, and because these other documents and
their criteria are ultimately unnecessary to our resolution of the appeal, we do not consider their substance
in judging this case.
–3–
Group, Inc. at $9.9 million. After the City, TxDOT, and SWA reviewed the bids,
TxDOT advised the City that it would need to use the criteria listed in the bid
documents to determine whether a contractor was qualified.
The City reached out to the three lowest bidders to request more information
on their qualifications and for adjustments to the bids. Only Gadberry and Fain
responded.
In a January 26, 2022 letter, SWA recommended that the City and TxDOT
award the contract to Fain. SWA noted that Gadberry had limited experience on
trail projects, particularly ones with extensive street work, larger budgets, and
shorter timetables, like the City’s project. SWA also noted that when it contacted
Gadberry’s references, it received “mixed comments.” Some references criticized
Gadberry’s ability to meet project timelines and its excessive change order requests,
and although other references praised Gadberry’s project management, these
references were for smaller projects than the City’s trail project.
Days later, counsel for the Circuit Trail Conservancy concurred with this
assessment. Counsel’s view was that a lack of relevant experience justified
disqualification as a responsible bidder under the criteria stated in the bid documents.
In February, the City and SWA jointly wrote to TxDOT recommending that
Gadberry be disqualified and that the contract instead be awarded to Fain. In early
March, TxDOT gave its blessing for this decision. On March 7, the City notified
Gadberry that it had been disqualified due to lack of relevant experience.
–4–
Gadberry protested the decision, objecting that it was unaware of the
addendum and its requirement to demonstrate relevant, equivalent experience on
projects within the last three years. Gadberry asserted that if it had known of this
requirement, it would have submitted additional information to demonstrate its
suitability. Gadberry also emphasized the roughly $700,000 price difference
between its own bid and Fain’s.
To address the protest, the City invited both Gadberry and Fain to submit any
additional information they wished to share concerning their qualifications.
Gadberry responded with a more extensive inventory of its experience that listed
nearly forty projects it had completed dating back to 2015, the largest of which was
valued at about $9.5 million.
SWA wrote to the City with an updated evaluation. In it, SWA stated that it
was already aware of much of the information in Gadberry’s revised submission,
and the new information was limited to projects outside the relevant range of dates,
scope, and project type. For instance, none of the newly listed projects were trail or
roadway projects. SWA also noted that Gadberry had done nothing to address the
mixed feedback SWA had received from Gadberry’s references. SWA continued to
recommend disqualifying Gadberry.
The same day that SWA submitted its updated evaluation, the City issued a
memo stating that Gadberry had submitted no additional relevant experience that
would change the City’s view. “Based on this, The City stands behind our decision
–5–
to deem Gadberry Construction [C]ompany non-responsive . . . .” Ultimately, the
city council voted to disqualify Gadberry, and it awarded Fain the contract for the
project, which, including all alterations, was valued at approximately $11.5 million.
Gadberry filed this suit in May 2022. It noted that the City was required to
award the project to the “lowest responsible bidder.” Gadberry claimed that title for
itself; it argued that its bid was the lowest by a significant margin and that it had
provided an “exhaustive” list of sixteen projects in the last three years that
demonstrated its fitness for the project. Gadberry alleged that it had followed all the
proper procedures for the bid, but the City had retroactively imposed unstated
criteria as a basis to disqualify Gadberry in favor of its preferred contractor. In
Gadberry’s view, the City had articulated “no reasonable basis” for disqualifying it.
Gadberry sought declarations that the City’s award of the project to Fain was void
for violating chapter 2269 of the Texas Government Code and that Gadberry was
qualified and responsible for projects such as the City’s. Gadberry also prayed for
temporary injunctive relief, based on chapter 252 of the Texas Local Government
Code, to prevent the City from awarding the project to another contractor.
After a hearing in June 2022, the trial court granted Gadberry a temporary
injunction that barred the City and its agents from performing or paying the
procurement contract for the project. Gadberry then amended its petition to add
SWA and Circuit Trail Conservancy as defendants, asserting that they had
–6–
committed tortious interference and negligent misrepresentation that had prevented
Gadberry from rightfully obtaining the contract.
The City filed a plea to the jurisdiction challenging Gadberry’s claims on three
fronts, which mirrored its arguments on appeal. The trial court denied the plea as to
Gadberry’s claim for injunctive relief under chapter 252, but it granted the plea as
to Gadberry’s claims under chapter 2269 and dismissed those claims with prejudice.
The City appealed both the temporary injunction and the denial of its plea to the
jurisdiction. Gadberry did not cross-appeal the dismissal of its chapter 2269 claims.
II. TEXAS LOCAL GOVERNMENT CODE CHAPTER 252
In its first three issues,3 the City contends that the trial court erred by partially
denying its plea to the jurisdiction. The City maintains that Gadberry did not
establish a waiver of immunity for its claim under chapter 252 of the Texas Local
Government Code. According to the City, this chapter gives a governing body
absolute discretion to reject any and all bids for procurement contracts, and thus
Gadberry did not establish a waiver of immunity to pursue an injunction against the
City. The City also emphasizes the evidence that it disqualified Gadberry for the
3
The City brought two separate appeals—one concerning the denial of its plea to the jurisdiction
and another concerning the grant of the temporary injunction—and the City filed separate briefs in each
appeal. Pursuant to an agreed motion, we consolidated the appeals. Because the City’s arguments in the
appeal concerning the plea to the jurisdiction are sufficient to fully resolve the case, we focus on the issues
in that appeal and do not address the separate issues posed by the City’s other brief in the appeal of the
injunction.
Furthermore, the City’s brief in the jurisdictional appeal argues that the trial court was correct when
it granted the plea to the jurisdiction as to Gadberry’s chapter 2269 claims. However, Gadberry did not
cross-appeal that ruling, and we therefore do not consider these arguments.
–7–
legitimate reason that it lacked the necessary, relevant experience to handle a project
of this scale and type.
A. Statutory Construction
We review matters of statutory construction de novo. Broadway Nat’l Bank,
Tr. of Mary Frances Evers Tr. v. Yates Energy Corp., 631 S.W.3d 16, 23 (Tex.
2021). Our objective is to effectuate the Legislature’s intent as we find it in the
statute’s text. Id. We do not consider statutory provisions in isolation but rather
seek their meaning from the statute as a whole. Id. at 23–24. We presume the
Legislature included each word in the statute for a purpose and that words not
included were purposefully omitted. Id. at 24. We rely on the plain meaning of the
text unless a different meaning is apparent from the context or the plain meaning
leads to absurd or nonsensical results. Id. We apply any definitions the statute
supplies, but if a term is not defined, we interpret the term according to its ordinary
meaning. Id. We interpret statutory waivers of immunity narrowly. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).
B. Governmental Immunity & Pleas to the Jurisdiction
A city is not a freestanding sovereign with its own inherent immunity, but it
will be extended the state’s immunity when acting as the state’s agent and
performing governmental functions for public benefit. Wasson Ints., Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 433–34 (Tex. 2016). Generally, a government
employee sued in his official capacity has the same governmental immunity,
–8–
derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367,
382–83 (Tex. 2011).
A plea to the jurisdiction based on governmental immunity challenges a
court’s subject matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 225–26 (Tex. 2004); see Chambers-Liberty Cntys. Navigation Dist. v.
State, 575 S.W.3d 339, 345 (Tex. 2019). In a suit against a governmental unit, the
plaintiff must affirmatively demonstrate the court’s jurisdiction by establishing a
valid waiver of immunity. Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 284 (Tex.
2022). We review a ruling on a plea to the jurisdiction de novo. City of San Antonio
v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022).
If a plea to the jurisdiction challenges the pleadings, we determine whether
the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction
to hear the cause. Dohlen v. City of San Antonio, 643 S.W.3d 387, 393 (Tex. 2022).
When a plea to the jurisdiction challenges the existence of jurisdictional facts, the
court can consider evidence as necessary to resolve any dispute over those facts,
even if that evidence implicates both subject matter jurisdiction and the merits of the
case. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
In those situations, a trial court’s review of a plea to the jurisdiction mirrors that of
a traditional summary judgment motion. Id. The defendant carries the initial burden
to meet the summary judgment proof standard for its assertion that the trial court
lacks jurisdiction. Id. If it does, the plaintiff is then required to show that a disputed
–9–
material fact exists regarding the jurisdictional issue. Id. If a fact issue exists, the
trial court should deny the plea. Id. But if the relevant evidence is undisputed or the
plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules
on the plea as a matter of law. Id.C. Chapter 252 Contains a Waiver of Governmental Immunity
Gadberry does not dispute that the City-appellants in this case, which are a
city and its officials, have governmental immunity; Gadberry seeks to establish a
waiver of that immunity.
Chapter 252 of the Texas Local Government Code provides that a contract of
the type involved in this case “must be awarded to the lowest responsible bidder.”
TEX. LOC. GOV’T CODE § 252.043(d). It also provides that “[t]he governing body
may reject any and all bids.” Id. § 252.043(f). If the contract is made without
compliance with the requirements of chapter 252, it is void, and the performance of
the contract may be enjoined by a person who submitted a bid for a contract for
which the competitive sealed bidding requirement applies, regardless of residency,
if the contract is for the construction of public works. Id. § 252.061(2).
Texas courts have held that chapter 252 effects a waiver of immunity to pursue
an injunction. City of El Paso v. Waterblasting Techs., Inc., 491 S.W.3d 890, 898
(Tex. App.—El Paso 2016, no pet.); City of New Braunfels v. Carowest Land, Ltd.,
432 S.W.3d 501, 532–33 (Tex. App.—Austin 2014, no pet.); see also Dallas Cnty.
v. Cedar Springs Invs., L.L.C., 375 S.W.3d 317, 321 (Tex. App.—Dallas 2012, no
–10–
pet.) (op. on reh’g) (same as to comparable provisions in chapter 262); Securtec, Inc.
v. Cnty. of Gregg, 106 S.W.3d 803, 815 (Tex. App.—Texarkana 2003, pet. denied)
(op. on reh’g) (same). “If a party with standing under Section 252.061 could not sue
the municipality, the party would effectively be precluded from enjoining the
contract’s performance or enjoining payment of money under the contract, leading
to the absurd result that the Legislature intended to grant the parties a right without
a remedy.” Waterblasting Techs., 491 S.W.3d at 898.
III. GADBERRY DID NOT ESTABLISH A WAIVER OF IMMUNITY UNDER
CHAPTER 252
The question is what facts must a plaintiff plead to establish a waiver of
governmental immunity under chapter 252.
A. A Governing Body May Reject Any and All Bids for a Rational Purpose
The City emphasizes the provision that the governing body may reject any
and all bids and encourages us to interpret this statutory provision literally. The City
argues that, because the Legislature did not limit or constrain a municipality’s right
to “reject any and all bids,” when a municipality exercises that discretion, such action
cannot form the basis of an immunity waiver under chapter 252 as a matter of law.
The City’s interpretation would suggest that any reason a city articulates to reject a
bid should suffice to preserve its immunity, no matter how questionable the
justification.
However, we do not believe that municipalities enjoy absolute, uncabined
discretion in expending public funds. Bidding statutes were enacted for the benefit
–11–
of the public, to protect the taxpaying public from fraud or favoritism in the
expenditure of government money for public works. See, e.g., Securtec, 106 S.W.3d
at 815. Followed to its furthest conclusion, the City’s interpretation would
apparently provide governing bodies with an absolute license for graft in
procurement contracts. Under such an interpretation, a city could openly reject any
bid but that of the mayor’s brother-in-law, or the contractor with an envelope of cash
in an outstretched hand, and have its corruption shielded by immunity. There would
effectively be no circumstance under which a wronged citizen or bidder could
successfully allege or prove that a city violated the competitive bidding requirements
by improperly rejecting bids. This would essentially eliminate any waiver of
immunity for competitive bidding requirements, despite the Legislature’s explicit
creation of a cause of action under chapter 252.
The Legislature has authorized municipalities to reject any and all bids—for
lawful reasons. The Legislature’s words do not imply a grant of authorization for
municipalities to act unlawfully. The meaning of chapter 252 “as a whole” concerns
safeguarding taxpayer funds, not shielding cities from their misuse. See Broadway
Nat’l, 631 S.W.3d at 23–24. The City’s argument runs directly counter to our
precedent and the purpose and historical tradition of our competitive bidding
statutes. See id. at 24. “[L]owest- and lowest-responsible-bidder requirements have
a long history, as a survey of 19th century state constitutions and federal territorial
legislation reveals.” Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S.
–12–
668, 683 (1996). “Ensuring that taxpayers receive value for contracts awarded by
governmental entities and avoiding corrupt practices is a problem of long standing.”
GADV, Inc. v. Beaumont Indep. Sch. Dist., No. 1:11-CV-187, 2011 WL 2220242, at
*1 (E.D. Tex. June 7, 2011). “Bidding procedures to protect the public treasury from
corruption or incompetence have been adopted since colonial times and were part of
the reformist response to local officials such as Boss Tweed, of Tammany Hall
fame.” Id. at *1 n.2. “A lowest responsible bidder requirement was placed in the
1876 Texas Constitution in response to the granting of government contracts for fuel
and printing at exorbitant prices as special favors to friends or relatives of those
wielding governmental powers.” Id. at *1 (internal quotation omitted).
The purpose of competitive bidding provisions “is to stimulate competition,
prevent favoritism and secure the best work and materials at the lowest practicable
price, for the best interests and benefit of the taxpayers and property owners.”
Sterrett v. Bell, 240 S.W.2d 516, 520 (Tex. App.—Dallas 1951, no writ). The
“obvious purpose” of provisions concerning lowest responsible bidders “is to afford
the maximum protection to the municipality’s taxpayers against favoritism, fraud
and improvident officials who might wink at charges for ‘extras.’” Seaboard Constr.
Co. v. Atl. City, 204 F.2d 163, 164–65 (3d Cir. 1953). “They should be construed
so as to effectuate that purpose.” Id. at 165.
Consistent with that purpose, we interpret the provision that a governing body
may “reject any and all bids” as a signal of additional discretion, not unlimited
–13–
discretion as the City advocates. Our court has held that, where the rejected lower
bidders failed to plead or prove any illegality, arbitrariness, or abuse of discretion by
the government in its award of a contract, the government had a statutory right to
reject any and all bids, and the rejection does not show a violation of the competitive
bidding statute. Corbin v. Collin Cnty. Comm’rs Ct., 651 S.W.2d 55, 57 (Tex.
App.—Dallas 1983, no writ). We agreed that it was necessary on the part of the
rejected lower bidders to allege that the discretion exercised by the government was
illegally done or fraudulently exercised. See id. (quoting Holt & Co. v. Wheeler Co.,
235 S.W. 226, 229 (Tex. App.—Amarillo 1921, writ dism’d)).
Thus, before immunity will be waived for alleged violations of the lowest
responsible bidder process, we have usually insisted on allegations and evidence4
that the governing body’s procurement power was used illegally or fraudulently. “It
is only in cases of very extreme and arbitrary conduct on the part of the [government]
that the courts are authorized to lay hands on” this facet of the procurement process
and interfere with the sound exercise of governmental discretion. See Sterrett, 240
S.W.2d at 519. As we interpret lowest responsible bidder provisions, only evidence
of a governing body’s abuse of its discretion to reject bids will waive its immunity.
If indicia of graft, cronyism, or other unlawful purpose are absent, and if the record
otherwise supplies some rational basis for the decision, a court should not interfere
4
At least when a plea to the jurisdiction involves a challenge to the existence of jurisdictional facts.
–14–
in the governing body’s decision to reject a bid under Texas Local Government Code
section 252.043(f).
B. Other Courts and Commentators Have Reached Similar Conclusions
Our prior interpretation of a competitive bidding statute in Corbin is
consistent with how other courts have approached similar statutes. See, e.g., Alpha
Painting & Constr. Co. Inc. v. Del. River Port Auth. of Pa. & N.J., 853 F.3d 671,
683 (3d Cir. 2017) (describing review of competitive bidding awards as “extremely
limited in scope” and not actionable “unless the aggrieved bidder demonstrates that
there was no rational basis for the . . . decision”), as amended (Apr. 26, 2017);
Advance Tank & Constr. Co., Inc. v. Arab Works, 910 F.2d 761, 765 (11th Cir. 1990)
(“[U]nless a plaintiff can demonstrate improper influence or a fraudulent scheme to
eliminate fair competition, the honest exercise of discretion is presumed
proper . . . .”); Conway Corp. v. Constr. Eng’rs, Inc., 782 S.W.2d 36, 39 (Ark. 1989)
(permitting challenge of a bid rejection in bad faith); Budd v. Bd. of Comm’rs of St.
Joseph Cnty., 22 N.E.2d 973, 975 (Ind. 1939) (stating that injunction may be
available “where the award is arbitrary, corrupt, or fraudulent”); Baukol Builders,
Inc. v. Cnty. of Grand Forks, 751 N.W.2d 191, 199 (N.D. 2008) (stating that such a
claim turns on whether the governing body “acted arbitrarily, fraudulently, or
collusively, or that its judgment was influenced by improper motives”).
Commentators agree. “Reservation of the power to reject all bids injects
another element of discretion into the contract award process.” 3 LOCAL
–15–
GOVERNMENT LAW § 22:16 (footnote omitted). “The discretion to reject all bids
when conferred explicitly by applicable law is regarded as virtually absolute and
may be overturned only if done in bad faith.” Id. “A municipality’s determination
that an entity is a non-responsible bidder for a public works contract can be disturbed
only if no rational basis exists for its conclusion.” 10 MCQUILLIN MUN. CORP.
§ 29:72 (3d ed.). “Thus, unless a plaintiff can demonstrate improper influence or a
fraudulent scheme to eliminate fair competition, the honest exercise of discretion is
presumed proper since competitive bid statutes are for the protection of the public,
not the benefit of an unsuccessful bidder.” Id. “In the absence of improper
influence, the municipality need not be correct in its assessment of a bidder’s
‘responsibility’; it need only have bona fide, rational, and articulable reasons for its
decision.” Id.
C. The City of Dallas Provided Evidence of Rational Reasons for
Disqualifying Gadberry’s Bid
The Texas Legislature has provided examples of rational bases for a
government to judge a bidder’s responsibility in competitive bidding statutes. In
addition to price, the Legislature has also suggested criteria such as:
 the experience and reputation of the bidder and of the bidder’s goods or
services;
 the quality of the bidder’s goods or services;
 the extent to which the goods or services meet the municipality’s needs;
 the bidder’s past relationship with the municipality;
 the impact on the ability of the municipality to comply with laws and
rules relating to contracting with historically underutilized businesses
and nonprofit organizations employing persons with disabilities;
–16–
 the bidder’s safety record;
 the bidder’s proposed personnel; and
 whether the bidder’s financial capability is appropriate to the size and
scope of the project.
See, e.g., TEX. LOC. GOV’T CODE § 252.043(b); TEX. GOV’T CODE § 2269.055(a).
In this case, the City’s right to consider similar criteria was reinforced by the
bid documents themselves. Those documents achieved three ends: they cautioned
contractors that they could be rejected for lack of relevant experience, they defined
that experience in terms of equivalent projects within the past three years, and they
specifically reserved the right to request information on this issue.
Gadberry’s bid was the lowest, but that achieves little for Gadberry because it
has not alleged or offered any proof5 that the City’s decision to deem Gadberry not
responsible was rooted in fraud, corruption, or any other sort of gross abuse of the
City’s procurement power. Indeed, Gadberry conceded at the temporary injunction
hearing that the City’s reason for disqualifying Gadberry was “not improper motives
for financial reasons or anything like that. That’s what people often think of when
5
In its reply brief, the City argues for the first time, in just two sentences and without any citation
to authority, that “[t]he evidence referenced in Gadberry’s brief in the temporary injunction appeal was not
presented to the trial court for its consideration when it ruled on the City’s plea to the jurisdiction.
Accordingly, the City contends it cannot be considered in this Court’s de novo review of that ruling.” This
argument is inadequately briefed. See TEX. R. APP. P. 38.1(i); Amrhein v. Bollinger, 593 S.W.3d 398, 403
(Tex. App.—Dallas 2019, no pet.). It is also waived, having been raised for the first time in a reply brief.
See Humphries v. Advanced Print Media, 339 S.W.3d 206, 208 (Tex. App.—Dallas 2011, no pet.) (“In
general, an issue raised for the first time in a reply brief may not be considered.”). We therefore do not
consider it except to make note of the supreme court’s direction that our review of a plea to the jurisdiction
should be “confine[d] . . . to the evidence relevant to the jurisdictional issue.” Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 555 (Tex. 2000).
–17–
procurement goes wrong, that somebody’s brother-in-law might be benefiting.”6
Therefore, all that remains is to determine whether the record supplies some rational
basis for the City’s award.
During its review of the bids, the City consistently cited Gadberry’s lack of
experience as its reason for disqualifying Gadberry as a responsible bidder.
Comparable experience is certainly a relevant factor, and the record bears out the
City’s belief that Gadberry lacked it. The City’s project to develop roads and trails
in and near downtown Dallas was worth roughly $11.5 million dollars; the largest
projects appearing on Gadberry’s resume were worth at most $9.5 million, and these
projects were not roadway projects but renovations and repairs of existing buildings.
The City, in its discretion, determined that only experience within the last three years
would be relevant; Gadberry’s only experience with loosely comparable trail
projects occurred four and five years beforehand, and they were worth just over $3
million. In apparent good faith, the City stated its concern that the project would
require significant experience managing traffic flow during construction in
downtown Dallas’s dense urban environment; Gadberry had no such experience,
having completed projects only in “tightly controlled conditions,” in the words of an
affiant for the City. As for how Gadberry’s track record related to the project’s time
6
Gadberry’s only proof that might even arguably fit with the standard we have articulated was its
evidence that SWA’s recommendation to the City to disqualify Gadberry was based on SWA’s years-old
grudge relating to another project. However, Gadberry offered no evidence that the City shared in this
alleged grudge or otherwise acted with improper motives.
–18–
demands, the matter was put succinctly by counsel for one of the City’s partners on
the project, who noted, “Gadberry’s largest contract completed was a $9MM project
that was completed over a 36 month period. Gadberry is now being asked to
complete[] a $12MM project over a 14 month period.” Counsel questioned whether
Gadberry had demonstrated an ability “to handle a project that is 30% more
expensive in shorter than half the time as their previous largest contract.”7 By
contrast, the next lowest bidder, Fain, had experience with several large, recent
roadway construction projects, the highest of which was valued at approximately
$13 million. These considerations are all part of the “experience, qualifications, or
financial capability” criteria set out in the bid documents that the City could use to
exercise its discretion in determining whether Gadberry was a responsible bidder.
Gadberry has not provided evidence creating a fact issue as to whether the
City unlawfully abused its discretion under Texas Local Government Code section
252.043(f) and waived its immunity. See Garcia, 372 S.W.3d at 635 (“[I]f the
plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules
on the plea as a matter of law.”). As in Corbin, the record here reflects that the City
considered “apparently honest evaluations,” the City did not violate the competitive
bidding statute, and the rejected bidder is not entitled to injunctive relief. See 651
7
Furthermore, when Gadberry initially protested unfair treatment, the City afforded it another
opportunity to submit its qualifications for review and gave full consideration to Gadberry’s revised
submission—facts that lend additional support to the view that Gadberry received even-handed treatment
rather than an arbitrary deprivation.
–19–
S.W.2d at 57. The trial court was therefore required to grant the City’s plea to the
jurisdiction as to the chapter 252 claim. We sustain the City’s first three issues.
IV. CONCLUSION
We conclude that the trial court erred when it denied the plea to the
jurisdiction as to Gadberry’s claim under chapter 252. We reverse the trial court and
dismiss the case for want of jurisdiction. See Maspero, 640 S.W.3d at 533.
/Emily Miskel/
220665f.p05 EMILY MISKEL
JUSTICE
–20–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF DALLAS, MAYOR ERIC On Appeal from the 192nd Judicial
JOHNSON IN HIS OFFICIAL District Court, Dallas County, Texas
CAPACITY, AND CITY COUNCIL Trial Court Cause No. DC-22-04882.
MEMBERS CHAD WEST, CASEY Opinion delivered by Justice Miskel.
THOMAS, CAROLYN ARNOLD, Justices Molberg and Pedersen, III
ADAM BAZALDUA, TENNELL participating.
ATKINS, PAULA BLACKMON,
ADAM MCGOUGH, JAYNIE
SCHULTZ, CARA MENDELSOHN,
AND GAY WILLIS IN THEIR
OFFICIAL CAPACITIES,
Appellants
No. 05-22-00665-CV V.
GADBERRY CONSTRUCTION
COMPANY, INC., Appellee
In accordance with this Court’s opinion of this date, the order of the trial
court is REVERSED and the case is DISMISSED.
It is ORDERED that appellants CITY OF DALLAS, MAYOR ERIC
JOHNSON IN HIS OFFICIAL CAPACITY, AND CITY COUNCIL MEMBERS
CHAD WEST, CASEY THOMAS, CAROLYN ARNOLD, ET AL. recover their
costs of this appeal from appellee GADBERRY CONSTRUCTION COMPANY,
INC.
Judgment entered this 11th day of July 2023.
–21–