Rochester City Lines Co., Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1944

Rochester City Lines Co.,
Appellant,

vs.

City of Rochester,
Respondent,

First Transit, Inc.,
Respondent.

Filed August 6, 2018
Affirmed
Connolly, Judge

Olmsted County District Court
File No. 55-CV-12-1003

James A. Godwin, Rick A. Dold, David L. Liebow, Godwin Dold, Rochester, Minnesota;
and

Steven A. Diaz (pro hac vice), Law Office of Steven A. Diaz, Washington, D.C. (for
appellant)

John M. Baker, Monte A. Mills, Katherine M. Swenson, Greene Espel PLLP, Minneapolis,
Minnesota (for respondent City of Rochester)

Charles K. Maier, Richard C. Landon, Gray, Plant, Mooty, Mooty & Bennett, P.A.,
Minneapolis, Minnesota (for respondent First Transit, Inc.)

2
Considered and decided by Bratvold, Presiding Judge; Connolly, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant, an unsucces sful bidder for a contract from respondent city, challenges
the district court’s decision after a bench trial on remand from the supreme court that the
bidding process did not reflect pervasive bias either against appellant or in favor of the
successful bidder, also a respondent . Appellant argues that the district court did not use
the correct leg al standard to evaluate a Griswold claim and that, if the district court had
used the correct legal standard, appellant would have prevailed. Appellant also argues that
the district court abused its discretion in denying appellant’s request to amend its complaint
on remand . Because the dist rict court used the correct legal standard in deciding
appellant’s Griswold claim in favor of respondents and because the re was no abuse of
discretion in denying appellant’s request to amend its complaint, we affirm.
FACTS
For 46 years, appellant Rochester City Lines Co. (RCL) contracted with respondent
City of Rochester (Rochester) to provide bus serv ice. In 2011, the F ederal Transit
Administration (FTA) informed Rochester that, in order to receive funds for public transit,
it would be required to award future contracts based on a competitive bidding process.
Rochester accordingly issued a request for proposals to opera te a bus service from July
2012 through December 2016 (the 2012 RFP).

3
The 2012 RFP provided in relevant part that proposals would be evaluated and
scored by an evaluation c ommittee using a “best value” selection process that involved
both price and quali tative components. There were four evaluation criteria: technical
(40%), interviews with key management staff (30%), past performance / reference checks
(20%), and financial ability (10%). Among the responsibilities of the contractor submitting
the successful proposal would be “mak[ing] a good faith effort to hire employees from
[Rochester’s] incumb ent Contractor [i.e., RCL].” Four contractors, including R CL and
respondent First Transit Inc. (FT), submitted proposals.
On February 15, 2012, RCL filed a lawsuit against Rochester, seeking an injunction
to halt the bidding process. The request for an injunction was denied, and the process
continued.
Of the 2,000 points possible, FT received the highest score, 1,613, and RCL the
lowest, 1,175. The evaluation committee recommended awarding the contract to FT, and
Rochester did so on April 2, 2012. On June 6, 2012, RCL filed an amended complaint
adding a Griswold claim1 against Rochester, joining FT as a defendant , and seeking an
injunction against FT’s performance of the contract.
After discovery, FT and Rochester moved for summary judgment. The district court
granted the motion and dismissed all o f RCL’s claims . RCL appealed, and this court
affirmed. See Ro chester City Lines, Co. v. City of Rochester , 846 N.W.2d 444 , 453, 455

1 See Griswold v. Ramsey Cty ., 242 Minn. 529, 535, 65 N.W.2d 647, 652 (1954)
(prohibiting “unreasonable, arbitrary or capricious” government action in awarding public
contracts).

4
(Minn. App. 2014) (concluding in relevant part that “RCL has failed to present sufficient
evidence for a reasonable fact -finder to conclude that the bid process and award violated
the principles of competitive bidding”) aff’d in part, rev’d in part, and remanded , 868
N.W.2d 655 (Minn. 2015) cert. denied, ___ U.S. ___, 136 S. Ct. 849 (2016) (RCL I).2 The
supreme court granted review of “the appropriate standard of review for an award of a
government contract through a ‘best value’ bidding process ” and partially granted review
of the dismissal of RCL’s “claims of unfair bias and favoritism in awarding the contract to
[FT].” RCL I, 868 N.W.2d at 657.
The supreme court resolved the first issue by holding “that the unreasonable,
arbitrary, or capricious standard adopted in Griswold [v. Ramsey Cty., 242 Minn. 529, 535,
65 N.W.2d 647, 651 -52 (1954)] is the appropriate standard for reviewing a city’s or
county’s decision to award a government contract after a best-value bidding process.” Id.
at 661. The second issue involved four RCL claims. The supreme court affirmed the
summary judgment granted for respondents on three of them: that (1) the terms of the 2012
RFP were excessive, (2) that Rochester’s attorney was biased, and (3) that FT had an
organizational conflict of interest. Id. at 662-64.
But the supreme court reversed the grant of summary judgment and remanded to the
district court for trial on the claim that “ numerous irregularities in the bidding process
suggest that [Rochester’s] decision to award the bus -service contract to [F.T.] was

2 To clarify the five appellate-court decisions in this matter, we note that this court’s RCL
(A13-1477), the supreme court’s RCL I (A13-1477), and this opinion, RCL IV (A17-1944),
pertain to the 2012 RFP process, while this court’s RCL II (A16-1515) and the supreme
court’s RCL III (A16-1515) pertain to the 2016 RFP.

5
arbitrary, capricious, or unreasonable under Griswold.” Id. at 664. The supreme court
concluded:
For at least two reasons, RCL has presented sufficient evidence
to create a genuine issue of material fact on the question of
whether [Rochester] awarded the contract to [FT] based on an
unfair and biased process.
First, the record contains evidence that the interview
process involved inconsistencies that might demonstrate
favoritism toward [FT]. . . . .
Second, RCL produced evidence that two employees of
[Rochester] who had initially agreed to serve as references for
RCL later refused to do so bas ed on advice from
[Rochester]. . . . .
Evidence of these two procedural irregularities raises
the specter of pervasive bias against RCL . . . . RCL is entitled
to a trial on whether [Rochester] made the award arbitrarily,
capriciously, or unreasonably.
. . . .
. . . . For the foregoing reasons, we affirm the judgment
of the court of appeals in part, reverse in part, and remand to
the district court for further proceedings consistent with this
opinion.

Id. at 664-65. During the remand process, RCL moved three times to amend its complaint,
primarily by adding claims for money damages . The motions were denied, by successive
judges, in December 2015, in June 2016, and in January 2017.
By January 2017, a number of things had occurred: (1) the 2012-2016 contract had
expired; (2) the 2016 RFP (including a process for bidders to file pre -bid protests that
would be decided by the moderator) had been issued; (3) RCL had filed a pre-bid protest
challenging several provisions of the 2016 RFP, including the fact that five members of
the 2016 evaluation committee were “holdover members” from th e 2012 evaluation
committee; (4) the moderator had denied RCL’s protest; (5) the contract for bus service

6
from 2017 to 2021 had been awarded to FT; and (6) RCL had sought certiorari review of
the moderator’s decision from this court.
On May 15, 2017, this court issued Rochester City Lines Co. v. City of Rochester,
897 N.W.2d 792, 799, 801 (Minn. App. 2017) (“hold [ing] that a best -value competitive
bidding process and any contract awarded through that process are rendered unreasonable,
arbitrary, or capricious by an RFP provision that creates an appearance of bias ”;
invalidating the 2016 RFP process and the 2016 contract “[b]ecause an appearance of bias
results from [Rochester’s] inclusion of the holdover members on the 2016 evaluation
committee”; and declining to address whether the moderator erred in denying RCL’s other
pre-bid protest claims) (RCL II), rev’d, Rochester City Lines Co. v. City of Rochester, 913
N.W.2d 443, 448 (Minn. 2018) (reversing the holding that an appearance of bias invalidates
a competitive bidding process and the resulting contract because Rochester forfeited the
appearance-of-bias claim by not alleging appearance of bias in either its pre-bid protest or
its opening brief to this court and remanding for this court to consider whether the
moderator erred by denying any of RCL’s other pre-bid protest claims) (RCL III).
A week after this court issued RCL II, the remand trial ordered by RCL I was held
to determine whether the 2012 contract had been awarded based on an unfair and biased
process, specifically on whether the interview process and the use of references were
arbitrary, capricious, or unreasonable in viol ation of Griswold. The district court
concluded that Rochester “did not award the bus -service contract to [FT ] in an arbitrary,
capricious, or unreasonable manner” and that “[ n]either . . . Rochester nor [FT ] violated
the Griswold standard” and awarded judgment for them.

7
RCL challenges that judgment, arguing that the district court did not apply the
correct legal standard, that RCL would have prevailed on the remanded issues if the correct
legal standard had been applied, and that the district court abused its discretion by denying
RCL’s request to amend its complaint.
D E C I S I O N
I. The Correct Legal Standard
This court reviews a district court’s application of the law de novo. Harlow v. State
Dep’t. of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016).
RCL argues that the correct legal standard for evaluating whether the 2012 bidding
process was arbitrary, capricious, or unreasonable, i.e., whether it violated Griswold, is
whether it resulted in actual bias or in an “appearance of bias.” The supreme court did not
mention “appearance of bias” in RCL I; the district court did not men tion “appearance of
bias” in its 37-page opinion that is the subject of this appeal ; and RCL did not mention
“appearance of bias” in the documents it submitted before and during trial , at trial, or in
the proposed findings of fact and conclusions of law it submitted two months after trial.
RCL’s posttrial brief relied extensively on RCL II to argue that “in this case the
correct standard is whether [the district court] finds either actual bias or any fact that even
appears to show bias” because “a best-value competitive bidding process and any contract
awarded through that process are rendered unreasonable, arbitrary or capricious, in
violation of the rule stated in Griswold . . . , if the process used or provisions of the [2016]
RFP create an appearance of bias.” On appeal, RCL again relies on RCL II, which it claims

8
was “the law of this state . . . bindi ng upon the district court when it rendered its decision
and remains the law today.”
However, a decision of the court of appeals does not become final until the deadline
for petitioning for review has expired. Hoyt Inv. Co. v. Bloomington Commerce & Trade
Ctr. Assocs., 418 N.W.2d 173, 176 (Minn. 1988). Rochester and FT sought review and the
supreme court granted review of RCL II two months before the district court issued its
decision: RCL II was not then and w ould not become state law unless and until it was
affirmed on review. See S tate v. Collins , 580 N.W.2d 36, 43 (Minn. App. 1998) (this
court’s opinion is not binding precedent if the supreme court grants review and does not
affirm), review denied (Minn. July 16, 1998). RCL III did not affirm RCL II: the holding
“that a best -value competitive bidding process and any contract awarded through that
process are rendered unreasonable, arbitrary, or capricious by an RFP provision that creates
an appearance of bias,” RCL II, 897 N.W.2d at 799, did not become state law.
The law of Minnesota at the time the district court made its decision was stated in
Griswold and quoted in RCL I:
“[I]rrespective of what lawful method is adopted or used in the
letting of public contracts, it is for the courts to determine
whether officials in the exercise of their discretion have applied
the method used in an arbitrary, capricious, or unreasonable
manner.” Griswold v. Ramsey Cty ., 242 Minn. 529, 535, 65
N.W.2d 647, 651-52 (1954).
. . . .
. . . [W]e hold that the unreasonable, arbitrary , or capricious
standard adopted in Griswold is the appropriate standard for
reviewing a city’s or county’s decision to award a government
contract after a “best-value” bidding process.

9
RCL I, 868 N.W.2d at 659, 661. The district court did not err in appl ying the Griswold
standard identified as appropriate in RCL I rather than the appearance-of-bias standard set
out in RCL II but not affirmed in RCL III.
Moreover, the supreme court has twice concluded that RCL forfeited claims by
failing to raise them appropriately.
In RCL I, RCL claimed that the terms of the 2012 RFP
were excessive and unreasonable. 868 N.W.2d at 661-62. We
held that RCL had forfeited this claim “by f ailing to raise it in
accordance with the pre-bid protest procedures outlined in the
[2012] RFP.” Id. at 662. Specifically, we deemed the
argument forfeited because “[n]owhere in the documents
submitted to [Rochester] prior to the bidding did RCL object
to any of the contractor qualifications as unreasonable or
excessive.” Id. Similarly, [Rochester] argues in this case that
RCL’s pre -bid prot est did not raise an appearance -of-bias
argument, and that RCL therefore forfeited this claim. We
agree.
. . . .
Moreover, RCL failed to properly raise an appearance -
of-bias argument before the court of appeals [in RCL II]. In its
initial brief, . . . [its] arguments . . . assert only actual bias.
RCL did raise the appearance of bias in its reply brief, but
litigants cannot raise new arguments in reply briefs. See Minn.
R. Civ. App. P. 128.02, subd. 4 (limiting reply brief to new
matter raised in respondent’s brief). . . . Thus, RCL also failed
to properly raise this argument before the court of appeals.
RCL therefore forfeited any appearance-of-bias argument.

RCL III, 913 N.W.2d at 447-48. We adhere to that conclusion.
RCL’s failure on remand to raise appearance of bias—in the documents it submitted
before and during trial, at trial, or in the proposed findings of fact and conclusions of law
it s ubmitted two months after trial —operates as a forfeiture of the right to raise that
argument on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“[A] party

10
[may not] obtain review by raising the same general issue litigated below but under a
different theory.”) The fact that RCL did mention appearance of bias in its post-trial written
argument, when Rochester and FT had no opportunity to respond to it, is further analogous
to RCL’s mention of appearance of bias in a reply brief, to which Rochester and FT also
had no opportunity to respond.3
II. The Remanded Issues
“On remand, a district court must execute an appellate court’s mandate strictly
according to its terms and lacks power to alter, amend, or modify that mandate.” Johnson
v. Princeton Pub. Utils. Comm’n , 899 N.W.2d 860, 868 (Minn. App. 2017) (quotation
omitted).
RCL concedes that “[t]he district court’s factual findings are not in dispute here [i.e.,
on this appeal]; the error is one of law.” Thus, the question before us is whether the district
court executed the su preme court’s mandate to conduct a trial and determine “[b]ased on
Griswold, . . . whether [Rochester’s] decision to award the contract to [FT] was arbitrary,
capricious, or unreasonable.” RCL I, 868 N.W.2d at 664.

3 We note that, at trial, RCL’s attorney answered, “No, Sir” when the district court asked
if it should be “at all concerned” with RCL II. Thus, RCL’s complaint in its brief that “the
district court failed even to consider the eff ect on the [bidding] process of an appearance
of bias, an effect which itself can render the process arbitrary, capricious, or unreasonable
under RCL II,” appears disingenuous. Nor are we p ersuaded by RCL’s argument that the
district court’s question referred only to RCL II’s factual issues, not to its holding. If that
were the case, RCL’s attorney would seem to be guilty of suppressio veri in not explaining
to the district court that it did need to be concerned about RCL II’s “appearance of bias”
holding, on which RCL intended to rely, even if it did not need to be concerned about RCL
II’s facts. It would be similar to a court asking someone, “Did you kill her?” and the person
responding, “I wasn’t there,” when that person had in fact hired someone else to kill her.

11
RCL I identified two categories of genuine issues of material fact as to whether the
bidding process was unfair and biased: first, inconsistencies in the ways bidders were
treated during the interview process, and second, whether two RCL employees whom FT
said it intended to hire would be able to serve as references for RCL.4
A. The Interview Process
Two documents governed this process: the 2012 RFP itself a nd the interview
instructions. The 2012 RFP provided that i nterviews of each vendor’s “Proposed Key
Management Staff” included, but were not limited to, the “responses to scenario questions”
from the general manager, the maintenance manager, and the transportation manager, and
the “qualifications and experience” of the general manager, the maintenance manager, and
the operations manager. (The district court noted that “the terms transportation manager
and operations manager appear to have been used interchangeably.”) The 2012 RFP also
provided that bidders should “make a good faith effort to hire employees from
[Rochester’s] incumbent Contractor [i.e., RCL].” FT’s bid listed two RCL managers (the
managers), “among the personnel who would manage the bus system if [FT] received the
contract from [Rochester] . . . consistent with [Rochester’s] requirement that each of the
bidders make a good-faith effort to hire RCL employees if selected.” RCL I, 868 N.W.2d
at 664.

4 The supreme court noted that, by mentioning two factual disputes, it was not stating that
there were no others. RCL I, 868 N.W.2d at 665, n. 4. The district court interpreted this
note to mean that “RCL was fre e at trial to raise other factual issues” but “did not entitle
RCL to other legal avenues of relief” and “[o]nly the Griswold claim [was] properly before
the court.” RCL does not challenge this on appeal.

12
The interview instructions provided that each bidder’s panel would have
“[m]aximum five members, with mandatory attendance of proposed General Manager,
Operations Supervisor, and Maintenance Supervisor” and that 40 minutes of each bidder’s
75-minute interview with the evaluation committee were to be spent in questioning that
bidder’s “three key Rochester staff (General Manager, Operations Supervisor,
Maintenance Supervisor).” The supreme court observed that:
[Rochester] . . . asked bidders to have their key managers attend
[the] interview with [its] evaluation committee. [FT] was the
only bidder . . . that received per mission from [Rochester] to
substitute other employees for the managers it listed in it s bid
to represent it at the interview with the committee. Then, rather
than ba sing its interview scores only on the personnel who
actually attended the interview on behalf of each bidder, the
committee awarded points to both RCL and [FT] based on the
performance of the two RCL managers during RCL’s
interview. [Rochester] never informed the other bidders that it
had allowed [FT] to list RCL’s managers in its bid, to bring
substitute personnel to its intervie w, or that it had awarded
points to FT based on the performance of RCL’s managers
during RCL’s interview.

Id.
Following remand , a trial was held to determine whether, in its handling of the
interviews, “[Rochester] made the award [of the contract to FT ] arbitrarily, capriciously,
or unreasonably.” Id. at 665. The district court stated in its memorandum5 that:
Three of the six scoring criteria for the interviews were
responses to scenario questions. FT took a risk by not having

5 See Central Lakes Educ. Assoc. v. Indep. Sch. Di st. 743, 411 N.W.2d 875, 878 (Minn.
App. 1987) (noting that “meaningful appellate review is possible [in part] because … the
[district] court’s memorandum contains findings of fact and conclusions of law (although
not labeled as such) , and it clearly sets forth the basis of its decision”), review denied
(Minn. Nov. 13, 1987).

13
two of its proposed employees [i.e., the man agers] present.
The evaluation committee was able to evaluate [the managers’]
answers to scenario questions in the RCL interview. The terms
of the [2012] RFP do not bar this. [The managers’]
qualifications could be considered without an interview. Even
if the court considers that [ their] non -attendance [at the FT
interview] was a violation of the established rules, there has not
been sufficient evidence showing that FT was unfairly
disadvantaged or that any other bidder was un fairly
disadvantaged or prejudiced. There is no indication that the
interview rules were changed, and RCL has not persuasively
pointed to any part of the [2012] RFP that was violated.
. . . .
[FT’s regional vice -president] felt tha t [ one manager’s ]
knowledge of the rolling stock, and [ the other manager’s ]
commitment to customer service made them good candidates.
. . . Having [the managers] in position would un doubtedly
make the transition much smoother. There is no meaningful
claim that any of the actio ns by [FT] were inappropriate or
improper, and the court finds that they were not. The
circumstances surrounding [the managers were] nothing more
than a fair business competition for desirable managers.
. . . .
RCL told [the managers] that they were two of the five
members of its presentation team. This created a dilemma for
[them because they had also been offered jobs with FT if it
were awarded the contract]. [One manager] talked to . . . his
boss at RCL, [who told him] that his appearance on behalf of
[FT at the interview] would be considered unethical.
Ultimately, [the managers] presented for RCL [at the
interview], and there is no evidence of any attempt or effort by
either of them to scuttle RCL’s presentation. . . .
[The vice-president] decided that, to avoid putting [the
managers] in a bad spot with RCL [ then their employer], FT
would not bring them to the interview. [The vice -president]
testified to his thought process in deciding not to bring [the
managers. FT] brought a full five people in order to be able to
answer questions about company policy. The evaluation
committee knew that [the managers] were listed in [FT’s] bid
as the proposed general manager and proposed maintenance
manager. Additionally, [the vic e-president] had a dis cussion
with the committee during [FT’s] interview as to why [FT] did
not bring [the managers].

14
The committee considered the impact of [the managers]
not appearing for [FT]. The committee also considered the
experience and qualifications of both [managers]. The
evidence shows [FT] did not unfairly benefit from not bringing
[the managers]. If anything, the evidence suggests that [FT]’s
interview score suffered. [FT] not bringing [the managers] was
a minor informality. The court finds that [FT\ not bringing [the
managers] was allowable under the terms of the [2012] RFP
and that it was fair to all bidders as it did not unfairly prejudice
other bidders nor unfairly benefit [FT].
. . . .
[The vice-president] . . . inform[ed] [Rochester] of his
plan to not bring [the managers] to the interview. He did not
ask permission. [The vice -president] viewed it as making a
statement. He knowingly took a risk that [FT] may be
penalized, perhaps even disqualified, for not having the
proposed general manager and maintenance manager whose
appearances were “ mandatory” under the interview
instructions. The court find s that [the vice -president] was a
credible witness. [The vice -president’s] decision put the
interests of the managers] ahead of his own, and ahead of
[FT]’s apparent interest. He willingly and knowingly risked
losing the bid, perha ps even being disqualified, if the
evaluation committee determined that the absence of
mandatory participants was a major defect rather than a minor
informality. Once aga in, there is a lack of evidence showing
any secret agreement between [Rochester] and [FT]. [The
vice-president] simply informed [Rochester] of what he was
going to do. It was the evaluation committee as a whole that
decided on the scoring related to [the managers]. . . .
. . . .
The court must determine if [FT] keeping [the
managers] off the presentation team, but using their names on
the bid [,] was a substantial dev iation or a minor
informality. . . . The court finds that [the managers] not
appearing at the interview was a minor informality that did not
adversely affect RCL’s bid proposal or unfairly advantage
[FT]. As Plaintiff, RCL has the burden of proof. RCL has not
met that burden.
. . . [The vice -president] talked informally to [one
manager] and suggested that [FT] might be interested in hiring
him as general manager if [FT] were to win the bi d. Those
talks continued and [that manager] was included as the

15
proposed general manager in [FT]’s proposal. This was a
conflict of interest, as [he] was an employee of RCL.
[The vice -president] decided to keep [the managers] off the
presentation team, but use their names with their consent [in
the bid].
The evaluation committee awarded [FT] points for [the
managers]. There is no evidence that [FT] and [Rochester] had
a secret agreem ent. The evidence shows that [the vice -
president] told [Rochester] that he was not bringing [the
managers] to the interviews. [FT] was not afforded more
interview time nor did [FT] exceed the allowed number of
interview participants. The court finds no basis for adding any
time from the RCL interview to the [FT] interview. [FT]
brought five people as it was allowed to do. The court does not
consider [the managers] to mean that [FT] had seven interview
participants.
The Minnesota Supreme Court indicated concern over
whether [FT] had access to more interview points than its
competitors. [FT] did not have access to more points than its
competitors. The scoring broke down by proposed managers’
answers to scenario quest ions and the qualifications and
experience of the proposed managers. There is no indication
that bringing other people to the interview afforded or provided
[FT] more points. It is true that [FT] was awarded points based
on the interview participation of [the managers] with RCL.
However, RCL overstates this importance. The qualifications
and experience of [the managers] could be judged with or
without them being presen t at the interview. Further, [one
manager] answered the proposed transportation manag er
questions rather than the general manager questions.
[Rochester] was required to treat all bidders equitably. This
does not mean that everything had to be the exact same, minor
variations or informalities were acceptable.

As its thoughtful and detailed memorandum indicates, the district court carried out
its mandate to conduct a trial on whether the interview procedure made the awarding of the
contract unreasonable, arbitrary, or capricious and concluded that it did not. That
conclusion is supported by the findings, which are themselves supported by the evidence.
See Johnson, 899 N.W.2d at 868; Cold Spring Granite, 802 N.W.2d at 370.

16
B. The Reference6
The supreme court reversed and remanded the grant of summary judgment that no
Griswold violation occurred in part because a Rochester employee on the evaluation
committee, (the employee), who “initially agreed to serve as [a] reference[] for RCL [but]
later refused to do so based on advice from [Rochester’s attorney that serving as a
reference] . . . would interfere with [his] duties on the evaluation committee . . . [did not]
inform[] RCL of the decision to withdraw as a reference, which reduced the total number
of points available to RCL on the past-performance criterion.” RCL I, 868 N.W.2d at 664-
65.
After the trial, the district court found:
99. [The Rochester a ttorney] gave [the employee] the go
ahead to serve as a reference for RCL.
100. After receiving a question from [the employee] about
filling out the questionnaire, [the Rochester attorney] told [the
employee] that he could not complete the questionnaire and be
on the evaluation committee.
101. [The employee] was listed as a reference on RCL’s
proposal, but did not fill out the questionnaire.
102. While [the employee] did not provide a reference, he
did not provide a negative reference or provide negative
information about RCL to the evaluation committee.
103. There is no evidence that [the employee] ever denied
agreeing to serve as a reference for RCL.
104. There is no claim or evidence that [the employee] ever
said anything negative about RCL to the evaluation committee.
105. [The employee ’s] decision to not provide a reference
was based on his comm unications with [the Rochester

6 The supreme court remanded the issue of whether two Rochester employees committed
a Griswold violation by agreeing to serve as references for RCL and then withdrawing as
references. The district court concluded that neither employee committed a Griswold
violation. RCL challenges that conclusion only with regard to one of the employees, whom
we designate as “the employee.”

17
attorney] and not because of bias towards R CL or favoritism
towards [FT].
. . . .
108. It was a prudent decision for [Rochester] to include . . .
[the employee] on the evaluation committee. [He was]
intimately familiar with the transit needs of [Rochester].
109. [Rochester] never provided the nam es of the members
of the eval uation committee to RCL, and RCL never sought
this information.
110. The 2012 RFP requested references from five fixed route
recent contracts.
111. RCL had only one recent fixed route contract,
[Rochester]. RCL also listed other refer ences for which it
provided charter work.
112. By the te rms of the [2012] RFP, RCL was limited to
past performance points for its contract with [Rochester]. Each
reference would be scored on a maximum of ten points per
reference.
113. Despite this, two evaluators scored RCL in excess of ten
points by awarding points for the charter contracts.
114. The evidence shows that RCL received the full ten
points for its contract with [Rochester], despit e no
questionnaire being filled out, from ev ery evaluator except
one.
115. RCL actually received more points under past
performance than it strictly should have under the terms of the
[2012] RFP.
116. RCL was not placed at a disadvantage in the past
performance section.
117. [FT] was not given any advantage over its fellow
proposers in the past performance section.
. . . .
119. As . . . [the employee] had worked closely with RCL, [he]
had no need of a questionnaire to evaluate RCL’s past
performance.
120. RCL was unable to show t hat the lack of a compl eted
questionnaire from . . . [the employee] harmed it in scoring
under past performance.
121. RCL’s scoring in past performance was based on its
lack of fixed route references, not the lack of a completed
questionnaire.
. . . .

18
123. [The employee] gave the highest scores to RCL out of
the evaluators.
124. The evidence does not show that [the employee] had a
favoritism for [FT]. For example, [the employee] scored
[bidder] MV Transportation the highest.
. . . .
Memorandum
. . . .
One of the circumstances specifically referred to by the
Minnesota Supreme Court [in RCL I ] is the refusal of [the
employee] to complete [a] reference questionnaire[] for RCL.
[The employee] had been asked and agreed to be a reference
on behalf of R CL. . . . During the reference check, [the
employee] was asked to complete a questionnaire on behalf of
RCL. [The employee] declined to complete a questionnaire on
the advice of the Rochester City Atto rney. The [Rochester]
attorney told [the employee] that since he was serving on the
evaluation committee, completing such a questionnaire would
be a conflict of interest. . . . [The employee] did not complete
the questionnaire[], but the re is no indication that the absence
of [his] answered questionnaire[] h ad any impact on the
scoring or proposals.
The evaluatio n committee members knew that [the
employee] had bee n listed as [a] ref erence[] by RCL. RCL
received credit from every evaluator for its past work as the
city of Roche ster’s fixed route transit pro vider. Fo ur of the
evaluators awarded RCL ten po ints, one evaluator awarded
eight points, one evaluator awarded twenty -five points, and
one evaluator awarded twenty points. RC L lost points for not
having any other fixed route transit service experience outside
of Rochester. In fact, by the strict scoring requirements, RCL
should have only received at most ten points because the
company only had one fixed route contract reference.
. . . There is no evidence that [the employee] . . . said or
did anythi ng to favor [FT] or disfavor RC L. There is no
evidence that [the employee] . . . graded RCL’s proposals in
any way other than fairly, and perhaps generously.
The district court’s very specific findings as to the employee and as to the way in which
evaluators awarded points indicates that, again, the findings are supported by the evidence
and support the conclusion.

19
RCL relies on Rochon Corp. v. City of St. Paul, 814 N.W.2d 365 (Minn. App. 2012)
to argue “that a Griswold violation [can] occur[] even when an irregularity in the
procurement process [does] not affect the outcome of the contract award.” But Rochon is
distinguishable. In that case, after the bids had been opened, the lowest bidder was allowed
to change its b id to correct an error and to add another $89,211, resulting in the lowest
bidder receiving a contract for the increased amount. Rochon, 814 N.W.2d at 367. The
second- and third-lowest bidders were not allowed to remove disqualifying elements from
their bids after the opening, and the $89,211 added to the lowest bidder was unexplained .
This court found that , even though no other bid was displaced as a result , “[the] bid
modification was a material change” and the lowest bidder’s contract was declared voi d.
Id. at 369.
Here, both having the committee’s interview of FT not include an individual who
was then an RCL manager and having a Rochester employee on the committee not
complete a questionnaire are irregularities; neither equates or is even comparab le to the
material change of modifying an opened bid that occurred in Rochon. As the district court
noted:
[A municipality] has to some extent the “right to waive
irregularities when it is clearly for its benefit to do so and when
no damages will be inflicted upon it, or wrong done to others
nearby.” [ Nielsen v. City of St. Paul , 252 Minn. 12, 12, 88
N.W.2d 853, 855 (1958).] Waiving minor irregularities was for
[Rochester’s] benefit and no damages wer e to be inflicted on
[Rochester]. Perhaps more importantly, no wrong was done to
any bidders. None of the irregularities in the bidding process
resulted in wrong done to RCL. . . .
RCL has not shown any defects in the process that
affected or destroyed competitive bidding. [Rochester’s]

20
waiving of def ects or irregularities did not prejudice public
rights and did not prejudice the rights of any of the bidders. . . .
[M]inor defects in the procurement process are not sufficient
to void a contract which the parties have already entered. . . .
Any of the defects claimed by RCL were minor at most and so
are not sufficient to void the contract.

“If the guidelines are substantially followed, minor defects in the procurement
process will not be sufficient to void a contract into which the parties have already entered.”
Transit Team, Inc. v. Metro Council, 679 N.W.2d 390, 396 (Minn. App. 2004). The district
court did not err in concluding that minor procedural defects did not void Rochester’s
contract with FT.
III. Motion to Amend
The appropriate standard of review for denial of a motion to amend a complaint is
abuse of discretion. Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003).
RCL originally brought claims for : (1) a declaratory judgment that it owned the
transit system and had the sole r ight to operate it and that the 2012 RFP was unlawful;
(2) an injunction ordering Rochest er to cancel the 2012 RFP and renew RCL’s franchise
for five years; and (3) a writ of mandamus ordering Rochester to commence condemnation.
Its complai nt was first amended to add : (4) a contract -award bid-protest appeal; (5) a
defamation claim against a Ro chester Common Council member; (7) civil -rights
violations; and (8) substantive and procedural-due-process claims, as well as a third-party
defamation claim against the council member. RCL, 846 N.W.2d at 450. The district court
granted summary judgment to respondents on the condemnation claim and the third-party
defamation claim, then granted respondents summary judgment on all remaining claims.

21
Id. RCL affirmed the district court ; RCL I affirmed RCL except for the Griswold claim,
which it remanded to the district court for trial. RCL I, 868 N.W.2d at 665. Thus, only the
Griswold claim remained for trial on remand.
Two months after the release of RCL I , RCL made an attempt to amend the
complaint by adding other claims. The motion did not refer to the relief previously sought:
an injunction against FT and a voiding of the 2012 contract. Instead, the motion sought
damages in excess of $50,000 for each of its new claims: violation of law and pervasive
bias in the contract award; civil conspiracy; civil fraud; unreasonable restraint of trade; and
civil rights.
RCL’s motion to amend w as denied i n December 2015; in June 2016, a different
district court judg e orally den ied a renewed motion to amend; i n January 2017, a third
district court judge denied a renewed motion to amend and again denied such a mo tion
presented at the close of RCL’s case. RCL’s notice of appeal references the 2015 and 2017
orders and asks this court to reverse and remand them with instructions to enter judgment
in favor of RCL and determine the amount of damages under the causes of action in the
second amended complaint.
“[P]arties seeking to amend a pleading must move with reasonabl e diligence.”
Willmar Gas Co. v. Duininck, 239 Minn. 173, 176, 58 N.W.2d 197, 199 (1953). In 2015,
a district court judge cited Willmar Gas and concluded that RCL had not moved with
reasonable diligence in waiting until after RCL I amended the complaint. RCL argues on
appeal that “the [2015] district court erroneously ignored intervening appeals in

22
considering the timing of the motion to amend .” But the district court did not ignore the
fact that some of the delay was caused by appeals. It found that
RCL did not “move with reasonable diligence” in seeking this
amendment. RCL acknowledges that the basic facts on which
its new liability theories are based were known to it by the
summer of 2012. In 2012 and 2013 RCL . . . made no motion
. . . to raise conspiracy, fraud, and restraint-of-trade claims; to
seek money damages on all counts; and to make substantive
claims for relief against [FT]. The appellate process took two
years and RCL is not responsible for that. But this case was
far along before it e ver went up on appeal. . . . Because this
motion to amend was not made in 2012 or 2013, there was no
opportunity for the actionability of these new liability and
damages claims to be included in the briefing and rulings made
in this court in 2013 —something that may have reshaped the
course of this case in this court and in the appellate courts.

(Emphasis added.)
Thus, the 2015 district court acknowledged that some of the delay was caused by
the appellate process, but concluded that RCL contributed signi ficantly to that delay and
that the delay prejudiced Rochester and First Transit. The 2017 district court also relied
on Willmar Gas and concluded that:7
Even setting aside the time the case was before the
appellate courts, RCI has not moved with reasonable diligence.
The motion to amend se ems to be driven by the decisions of
the appellate courts, which limited RCL’s potential recovery.
From the [2017] court’s review of the record , RCL was aware
of the new theor ies of relief raised in the second amended
complaint well before the current procedural posture of this
case. [The 2015] order also provided discussion of theories of
relief that could not survive summary judgment and claims not
supported by law. [This] court has not found and has not been
provided a reason to find that such conclusions were incorrect.

7 We reject RCL’s assertion that the 2015 order was “the only substantive order on the
motion for leave to file the second amended complaint.”

23

RCL goes on to argue that, at a minimum, the district court should have denied the
motion to amend only with respect to FT, not with respect to Rochester. “But leave to
amend should not be granted when doing so would result in prejudice to the other party.”
Schober v. Comm’r of Revenue , 853 N.W.2d 102, 112 -13 (Minn. 2013) (quotation
omitted). RCL offers no refutation of the 2015 district court’s statements that “[t]he further
discovery necessar y to give [Rochester] fair opportu nity to investigate and meet RCL ’s
new proposed damages claims . . . would require trial to b e substantially delayed,” and
“this delay would constitute real and significant prejudice to [Rochester] . . . prejudice
which more than counterbalances Minnesota’s policy favoring liberal leave to amend.”
The district courts’ denials of RCL’s repeated motions to amend were not an abuse
of discretion, and the 2017 district court’s conclusions that the Griswold “unreasonable,
arbitrary or capricious” standard is the appropriate standard for evaluating a best -value
bidding process and that neither Rochester nor FT committed acts resulting in a Griswold
violation were not erroneous.
Affirmed.