Sowell's Meats & Servs., Inc. v. Peggy Mcswain, 788 F.2d 226 (4th Cir. 1986). · Go Syfert
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Sowell's Meats & Servs., Inc. v. Peggy Mcswain, 788 F.2d 226 (4th Cir. 1986). Cases Citing This Book View Copy Cite
“ordinarily, in the absence of state law creating a property interest in a disappointed bidder for state contracts, the bidder lacks standing to question the award of the contract.”
43 citation events (8 in the last 25 years) across 24 distinct courts.
Strongest positive: Cecile Erwin Young, in Her Official Capacity as the Executive Commissioner of the Texas Health and Human Services Commission; Molina Healthcare of Texas, Inc.; And Aetna Better Health of Texas, Inc. v. Cook Children's Health Plan, Texas Children's Health Plan, Superior Health Plan, Inc., and Wellpoint Insurance Company (texapp, 2025-08-25)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Statutes interpreted (leading-cases list)
#1 7 C.F.R. § 210.19(a) cited 2× in this case · 2 total citations of statute #1 7 C.F.R. § 210.19 cited 1× in this case · 10 total citations of statute #18 42 U.S.C. § 1751 cited 1× in this case · 90 total citations of statute
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (quoted) Cecile Erwin Young, in Her Official Capacity as the Executive Commissioner of the Texas Health and Human Services Commission; Molina Healthcare of Texas, Inc.; And Aetna Better Health of Texas, Inc. v. Cook Children's Health Plan, Texas Children's Health Plan, Superior Health Plan, Inc., and Wellpoint Insurance Company
Tex. App. · 2025 · quote attribution · 1 verbatim quote · confidence low
ordinarily, in the absence of state law creating a property interest in a disappointed bidder for state contracts, the bidder lacks standing to question the award of the contract.
cited Cited as authority (rule) Lanier Const. Co., Inc. v. CITY OF CLINTON, NC
E.D.N.C. · 2011 · confidence medium
Sowell’s Meats & Servs., Inc. v. McSwain, 788 F.2d 226, 228 (4th Cir.1986).
cited Cited as authority (rule) Carroll F. Look Construction Co. v. Town of Beals
Me. · 2002 · confidence medium
Inc., 103 F.3d at 1179-80 ; Sowell’s Meats & Servs., Inc. v. McSwain, 788 F.2d 226, 228 (4th Cir.1986).
discussed Cited as authority (rule) Hinesburg Sand & Gravel Co. v. State
Vt. · 1997 · confidence medium
Auth., 933 F.2d 853 , 857-59 (10th Cir. 1991); Sowell’s Meats, 788 F.2d at 228; L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 769 F.2d 517, 524 (8th Cir. 1985); Grand Canyon Pipelines, Inc. v. City of Tempe, 816 P.2d 247, 250-51 (Ariz. Ct. App. 1991); Polyvend, Inc. v. Puckorius, 395 N.E.2d 1376, 1380 (Ill. 1979), appeal dismissed, 444 U.S. 1062 (1980); Rice v. Scott County Sch.
discussed Cited as authority (rule) City-Wide Asphalt Paving, Inc. v. Alamance County
M.D.N.C. · 1997 · confidence medium
Gardner, 969 F.2d at 69 (“In our federal system, that is the province of the state courts.”) “[I]n the absence of state law creating a property interest in the disappointed bidder for state contracts, the bidder lacks standing to question the award of the contract.” Sowell’s Meats & Servs., Inc. v. McSwain, 788 F.2d 226, 228 (4th Cir.1986).
discussed Cited as authority (rule) Big Country Foods, Inc. v. Board of Education of the Anchorage School District (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
Sowell’s Meats, 788 F.2d at 229.
discussed Cited as authority (rule) Big Country Foods, Inc. v. Board Of Education Of The Anchorage School District (2×) also: Cited "see"
9th Cir. · 1992 · confidence medium
Sowell's Meats, 788 F.2d at 229. 17 We therefore conclude that Big Country may not challenge either the State of Alaska's alleged failure to follow federal procurement regulations, or the Department of Agriculture's alleged failure to enforce those regulations against Alaska.
cited Cited as authority (rule) Ohmann Enterprises v. Centralina Council of Governments James Lentz Ralph Austin C. David Ward Thomas Loudermilk Frances L. Murdock Robert N. Randall Joe Kiser Jerry L. Campbell Peter Keber Charles Yendell Charlie Dannelly Richard Messinger Robert Allison Melvin Huneycutt C.F. Henkel Bill Davis Jack Kiser Lee Armour Town of Wingate F. Bernard Helms Jerry Surratt Elliott Ward Richard Perry Peggy Dvorak, Ohmann Enterprises v. Centralina Council of Governments James Lentz Ralph Austin C. David Ward Thomas Loudermilk Frances L. Murdock Robert N. Randall Joe Kiser Jerry L. Campbell Peter Keber Charles Yendell Charlie Dannelly Richard Messinger Robert Allison Melvin Huneycutt C.F. Henkel Bill Davis Jack Kiser Lee Armour Peggy Dvorak County of Union Frank J. Hawfield O. Max Melton Ruth Helms Harry Myers
4th Cir. · 1990 · confidence medium
In Sowell's, the court held that "the express provision for enforcement of federal standards by the Secretary forecloses an implied private right of action." Id. at 229.
discussed Cited as authority (rule) Andersen-Myers Co., Inc. v. Roach
D. Kan. · 1987 · confidence medium
Therefore, the Tenth Circuit has never reached the issue that is now before this court. “[T]he majority rule bar[s] an unsuccessful bidder from bringing an action against public contracting officials.” Sowell’s Meats and Services, Inc. v. McSwain, 788 F.2d 226, 228 (4th Cir.1986).
discussed Cited as authority (rule) Curtis Ambulance of Florida, Inc. v. Board of County Commissioners of the County of Shawnee, Kansas, and Medevac Midamerica, Inc. (2×) also: Cited "see, e.g."
10th Cir. · 1987 · confidence medium
A number of courts have held, either explicitly or implicitly, that a disappointed bidder has no constitutionally protected property interest “until such time as the contract is actually awarded to him.” Estey, 431 F.Supp. at 470 ; 1 see also So-well’s Meats, 788 F.2d at 228; ARA Services, 590 F.Supp. at 627-29 ; Ashland-Warner.
cited Cited "see" Great Lakes Consortium v. Michigan
W.D. Mich. · 2007 · signal: see · confidence high
See Sowell’s Meats and Servs., Inc. v. McSwain, 788 F.2d 226 (4th Cir.1986); Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch.
discussed Cited "see" Thomas H. Gosnell v. Federal Deposit Insurance Corporation South Street Seaport Museum
2d Cir. · 1991 · signal: see · confidence high
See Sowell’s Meats and Servs., Inc. v. McSwain, 788 F.2d 226, 229 (4th Cir.1986) (per curiam) (noting that the grant of broad discretion to an agency “demonstrates a lack of a *377 property interest or of any protected right in federal procurement procedures and indicates that judicial review of the award of a contract at the behest of a disappointed bidder is inappropriate”); PRI Pipe Supports v. Tennessee Valley Auth., 494 F.Supp. 974, 976-77 (N.D.Miss.1980). 3 Accordingly, because disappointed bidders do not fall within the zone of interests sought to be protected by FIRREA, Gos-nell …
discussed Cited "see, e.g." AlohaCare v. Hawaii, Department of Human Services
D. Haw. · 2008 · signal: see also · confidence low
Big Country Foods, Inc. v. Board of Educ. of the Anchorage School District, 952 F.2d 1173 , 1176 (9th Cir.1992); see also Sowell’s Meats and Services, Inc. v. McSwain, 788 F.2d 226 , 228 n. 2 (4th Cir.1986).
cited Cited "see, e.g." Buckley Construction, Inc. v. Shawnee Civic & Cultural Development Authority
10th Cir. · 1991 · signal: see, e.g. · confidence low
See, e.g., Sowell's Meats & Servs., Inc. v. McSwain, 788 F.2d 226 , 228 (4th Cir.1986); Coyne-Delany Co. v. Capital Dev.
cited Cited "see, e.g." Buckley Construction, Inc. v. Shawnee Civic & Cultural Development Authority
10th Cir. · 1991 · signal: see, e.g. · confidence medium
See, e.g., Sowell’s Meats & Servs., Inc. v. McSwain, 788 F.2d 226, 228 (4th Cir. 1986); Coyne-Delany Co. v. Capital Dev.
discussed Cited "see, e.g." Grand Canyon Pipelines, Inc. v. City of Tempe
Ariz. Ct. App. · 1991 · signal: see, e.g. · confidence low
See, e.g., Sowell’s Meats & Services, Inc. v. McSwain, 788 F.2d 226 (4th Cir.1986) (applying South Carolina law); Coyne-Delany Co., Inc. v. Capital *594 Development Board, 616 F.2d 341 (7th Cir. 1980) (applying Illinois law); City Communications, Inc. v. City of Detroit, 650 F.Supp. 1570 (E.D.Mich.1987); ARA Services, Inc. v. School District of Philadelphia, 590 F.Supp. 622 (E.D.Pa.1984) (disagreeing with Three Rivers holding by Western District Court of Pennsylvania); Kendrick v. City Council of Augusta, Georgia, 516 F.Supp. 1134 (S.D.Ga.1981); Estey Corp. v. Matzke, 431 F.Supp. 468 (N.D.Il…
cited Cited "see, e.g." TETON PLUMBING & HEAT., INC. v. Board of Trustees, Laramie County School District Number One
Wyo. · 1988 · signal: see also · confidence low
See also Sowell’s Meats and Services, Inc. v. McSwain, 788 F.2d 226 , 86 A.L.R.Fed. 897 (4th Cir.1986), and Courtney, 371 F.Supp. 401 .
discussed Cited "see, e.g." Rice v. Scott County School District
Ind. Ct. App. · 1988 · signal: see also · confidence low
Coyne-Delany Co., Inc. v. Capital Development Board (7th Cir.1980), 616 F.2d 341, 342-343 ; Estey Corp. v. Matzke (N.D.Ill.1976), 431 F.Supp. 468 relying upon Perkins v. Lukens Steel (1940), 310 U.S. 113 , 60 S.Ct. 869 , 84 L.Ed. 1108 ; see also, Sowell's Meats and Services, Inc. v. McSwain (4th Cir.1986), 788 F.2d 226 .
discussed Cited "see, e.g." Connecticut Legal Services, Inc. v. Heintz
D. Conn. · 1988 · signal: see also · confidence low
See Curtis Ambulance of Florida, Inc. v. Board of County Commissioners, 811 F.2d 1371, 1376-78 (10th Cir.1987); see also Sowell’s Meats & Serv., Inc. v. McSwain, 788 F.2d 226 (4th Cir.1986); Coyne-Delany Co. v. Capital Dev.
Retrieving the full opinion text from the archive…
Sowell's Meats and Services, Inc.
v.
Peggy McSwain Vivial Pilant Kenneth C. Beam Frances McAllister Martha Briggs Amelia Helms Joseph Bonds J. Spratt White Miller F. Coggins James B. Cook W. Waddell Gibson Trudie B. Hemmsoth Annie S. Suite, and Robert L. Whitley, All Constituting Members of the Board of Trustees, School District No. 4, and Peggy Powers
85-1942.
Court of Appeals for the Fourth Circuit.
Apr 11, 1986.
788 F.2d 226
Cited by 17 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 68%
Citer courts: Court of Appeals of Texas (1)

788 F.2d 226

86 A.L.R.Fed. 897, 31 Ed. Law Rep. 755

SOWELL'S MEATS AND SERVICES, INC., Appellant,
v.
Peggy McSWAIN; Vivial Pilant; Kenneth C. Beam; Frances
McAllister; Martha Briggs; Amelia Helms; Joseph Bonds;
J. Spratt White; Miller F. Coggins; James B. Cook; W.
Waddell Gibson; Trudie B. Hemmsoth; Annie S. Suite, and
Robert L. Whitley, All Constituting Members of the Board of
Trustees, School District No. 4, and Peggy Powers, Appellees.

No. 85-1942.

United States Court of Appeals,
Fourth Circuit.

Argued Jan. 8, 1986.
Decided April 11, 1986.

Kenneth E. Sowell, Greenville, S.C., for appellant.

Stephen R. McCrae, Jr. (Melvin B. McKeown, Jr., Spratt, McKeown & McCrae, York, S.C., on brief), for appellees.

Before MURNAGHAN and SNEEDEN,[*] Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

[*~226]1

Sowell's Meats and Services, Inc., a supplier of foodstuffs, brought this action against various officials responsible for the administration of the school lunch program of Fort Mill School District Number 4, South Carolina. Sowell seeks actual and punitive damages for the defendants' alleged failure to abide by South Carolina and United States Department of Agriculture procurement standards. The district court concluded that Sowell lacked standing to pursue its actions under 42 U.S.C. Secs. 1983 and 1985 and South Carolina law and gave summary judgment for the defendants.[1] We affirm.

2

Sowell alleges that state and federal laws pertaining to the administration of the national school lunch program grant it a "protected right" as a beneficiary of those laws. It complains that the school officials, acting under color of state law, have deprived it of rights secured by the constitution and laws of the United States and South Carolina by failing to adhere to state and federal procedures for the procurement of food for the lunch program. Sowell asserts that "a disappointed bidder has standing to challenge the bid (procurement) procedures administered by state agencies disbursing federal funds pursuant to procedures mandated by the federal government, when the federal government has no enforcement procedure except private actions by citizens."

3

In order for Sowell to establish standing to maintain an action under Sec. 1983 it must show that the school officials deprived it of a property interest or a right secured by the constitution and laws of the United States. See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). For reasons adequately stated by the district court, we agree that South Carolina law does not confer a property interest on unsuccessful bidders for public contracts. See 618 F.Supp. 142-147. The district court satisfactorily explained why cases from other jurisdictions on which Sowell relies are inapplicable, and its decision is consistent with the majority rule barring an unsuccessful bidder from bringing an action against public contracting officials. Furthermore, the district court's denial of standing is in accord with the only other case that has considered the claim of a disappointed bidder in the national school lunch program. See ARA Services, Inc. v. School District of Philadelphia, 590 F.Supp. 622 (E.D.Pa.1984).

[*226]4

Ordinarily, in the absence of state law creating a property interest in a disappointed bidder for state contracts, the bidder lacks standing to question the award of the contract. But Sowell insists that the bid procedures contained in 7 C.F.R. Sec. 210.19(a) and Office of Management and Budget Circular A-102 afford it standing.

5

Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940), holds that bidders on federal contracts do not have standing to question the contracting officers' application of procurement statutes unless Congress discloses an intent to confer standing.[2] In reaching this conclusion, the court explained that procurement statutes are for the benefit of the government--not prospective bidders. 310 U.S. at 126, 60 S.Ct. at 876; see also Transco Security, Inc. v. Freeman, 639 F.2d 318, 321 (6th Cir.1981). We must, therefore, examine federal law dealing with the procurement of food for the national school lunch program to determine whether Congress intended to afford standing to disappointed bidders to sue state agencies that are recipients of federal aid.

6

Congress established the school lunch program to assist states through grants in aid to provide nutritious food for the nation's children, and it authorized the Secretary of Agriculture to prescribe regulations for the operation of the program. 42 U.S.C. Secs. 1751 and 1779. The Secretary directed state agencies to comply with OMB Circular A-102 which specifies procurement standards for federal assistance programs. 7 C.F.R. Sec. 210.19(a). The circular authorizes grantees to use their own procedures and apply local laws, providing they meet the prescribed standards.

7

Neither the statute, the regulations, nor the circular expressly confer standing on a disappointed bidder to question a state agency's award of a procurement contract, and we find no implicit conferral of standing. The standards do not require state agencies to award a contract to the low bidder. The circular provides:

8

Awards shall be made only to responsible contractors that possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration shall be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.

9

OMB Circular A-102, Attachment O, 6 (1981 Revision). This provision illustrates that the standards give broad discretion to the state agency in its procurement of food.

[*~227]10

In Phelps v. Housing Authority of Woodruff, 742 F.2d 816, 822-23 (4th Cir.1984), we concluded that the broad discretion granted by federal law to a local housing authority to select tenants negated a prospective tenant's claim of a property interest in a statutory preference for persons occupying substandard housing. Although Phelps dealt with a different statute, the principles that underlie its decision are applicable to Sowell's claim.

11

Here, as in Phelps, the discretion allowed the contracting officer demonstrates a lack of a property interest or of any protected right in federal procurement procedures and indicates that judicial review of the award of a contract at the behest of a disappointed bidder is inappropriate. The same point is emphasized in Perkins v. Lukens Steel Co., 310 U.S. 113, 127, 60 S.Ct. 869, 876-77, 84 L.Ed. 1108 (1940), where, referring to the Public Contracts Act, the Court said:

12

That Act does not depart from but instead embodies the traditional principle of leaving purchases necessary to the operation of our Government to administration by the executive branch of Government, with adequate range of discretion free from vexatious and dilatory restraints at the suits of prospective or potential sellers. It was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government; it is a self-imposed restraint for violation of which the Government--but not private litigants--can complain.

13

Sowell seeks to distinguish Phelps because that case emphasizes that the Secretary of the Department of Housing and Urban Development is authorized to enforce the housing standards enacted by the Congress. In contrast, Sowell argues, no means are provided for enforcing the regulations and the OMB standards for the lunch program except through actions by private citizens.

14

Sowell's argument is based on a mistaken premise. The Secretary has adequate means of enforcing the federal procurement standards. Whenever a state agency materially fails to comply with pertinent regulations or the OMB standards, the Secretary, acting through the Food Nutrition Service, may suspend or terminate the program in whole or in part or take any other appropriate action. 7 C.F.R. Sec. 210.19. As in Phelps, the express provision for enforcement of federal standards by the Secretary forecloses an implied private right of action. See 742 F.2d at 822.

[*~228]15

The judgment of the district court is affirmed.

*

The Honorable Emory M. Sneeden resigned from the court before this case was decided. He did not participate in the decision

1

The district court's opinion is reported as Sowell's Meats and Services, Inc. v. McSwain, 618 F.Supp. 140 (D.S.C.1985)

2

Section 10 of the Administrative Procedure Act, 5 U.S.C. Sec. 702, now authorizes judicial review of claims asserted by unsuccessful bidders on federal contracts that the contracting agency has failed to follow federal procurement standards. William F. Wilke, Inc. v. Department of the Army of United States, 485 F.2d 180 (4th Cir.1973). Section 10 does not authorize review of claims against state agencies, 5 U.S.C. Sec. 551(1)