2018 Ohio 3873
Ohio Ct. App.2018Background
- DAS issued an RFP for Ohio Lottery instant-ticket warehousing, distribution, and TelSell services; Intralot (incumbent) and Scientific Games were the only bidders.
- RFP evaluation: mandatory requirements (non-scored) → technical (1,075 max) → cost (630 max; cost form in sealed envelope; formula provided) → MBE plan (95 max); total 1,800 points.
- DAS applied an undisclosed internal "60% rule" (not in RFP) that if an offeror’s technical/MBE did not reach 60%, DAS would not open/score the cost proposal; Intralot scored ~50.7% on technical and therefore its cost envelope was not opened before award.
- Scientific Games received higher technical and MBE scores and DAS awarded it the contract; Intralot filed a protest, sought a TRO and preliminary injunction, and obtained a magistrate decision granting the injunction based on DAS’s undisclosed 60% rule.
- After the magistrate decision, DAS opened and scored Intralot’s cost proposal; Scientific Games’ total still exceeded Intralot’s by a large margin. The trial court sustained objections to the magistrate, dissolved the injunction, and dismissed the complaint with prejudice as moot; the court of appeals affirmed dissolution of the injunction but reversed dismissal with prejudice and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DAS’s undisclosed 60% minimum technical threshold was an improper evaluative criterion requiring disclosure in the RFP | The undisclosed 60% rule conflicted with R.C. 125.071 and the RFP language requiring that costs be considered after technical scoring; DAS’s use of the rule was an abuse of discretion and likely to succeed on the merits | DAS argued the 60% rule was an internal gateway policy, not an evaluative criterion that needed disclosure, and that any error was harmless because full scoring later showed Scientific Games would still win | Court of appeals: DAS’s undisclosed 60% rule was improper but did not automatically invalidate the procurement; trial court did not abuse discretion in rejecting the injunction because full scoring rendered the injunction issue moot |
| Whether Intralot demonstrated irreparable harm to justify a preliminary injunction | Intralot argued monetary damages are inadequate for a rejected bidder and that loss of contract and business disruption constituted irreparable harm | DAS argued loss of money alone is insufficient and Intralot failed to prove irreparable injury by clear and convincing evidence | Court: Because Intralot failed on the likelihood-of-success element after DAS rescored cost, the court did not reach the remaining factors; trial court’s denial of injunction affirmed |
| Whether DAS’s post-hearing opening/scoring of Intralot’s cost proposal waived mootness or was prejudicial/invalid | Intralot argued the late opening was prejudicial, waived DAS’s right to assert mootness, and could not cure the prior procedural violation | DAS contended corrective action during litigation is permissible, does not waive defenses, and the full scoring showed no relief was warranted | Court: No waiver; remediation during litigation can moot preliminary-injunction issues; scoring after the fact negated the magistrate’s sole ground for injunction |
| Whether trial court properly dismissed Intralot’s complaint with prejudice as moot | Intralot argued dismissal with prejudice was improper because other claims and discovery remained and it sought permanent relief | Lottery argued entire case was moot; DAS agreed dismissal with prejudice was error and asked remand without reinstating injunction | Court: Trial court erred in dismissing the entire complaint with prejudice without notice; appellate court reversed that portion and remanded for further proceedings |
Key Cases Cited
- Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590 (1995) (standard: injunction is discretionary; appellate review for abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352 (2008) (appellate review of legal questions de novo)
- Wheeling Corp. v. Columbus, 147 Ohio App.3d 460 (2002) (improper procurement irregularities do not require reversal absent shown prejudice or unfairness)
- State ex rel. Associated Builders & Contractors of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 125 Ohio St.3d 112 (2010) (discusses limits on bid-evaluation deviations and sole-disqualifier issues)