190 N.W. 308 | N.D. | 1922
Lead Opinion
Statement.
This is a proceeding to enjoin the execution of a
When the contract was let there was a balance of $3,280 in the building fund, and $3,200 in the emergency fund. Three of the commissioners voted for the awarding of the contract to Joyce; two commissioners voted in the negative, for the reason that they were opposed to any building or construction at that time. It does not appear from, the evidence that any protest was made against awarding the contract to Joyce, or that any objection or demand for a rehearing was made by those whose bids were not accepted. It further appears that the principal reasons for awarding the contract to Joyce were: The commissioners were acquainted with Joyce. He had previously done some public work in the county. They knew him to be a responsible and good contractor. They did not know anything about Niedermeyer or Schmidt concerning their responsibility or ability. They accepted the bid of Joyce because it seemed the most desirable under the circumstances. It otherwise appears that Joyce had previously made a bid for the same work upon a call which was not consummated through in junctional proceedings. He made the same bid again. Niedermeyer and Schmidt had not previously bid. Further, it appears that Niedermeyer had never had a contract of this size; that when he made this bid he had some talk with the plaintiff whereby he received assurance of some protection on his bid if plaintiff should institute action to stop this proceeding. Further, it appears that the commissioners, or some of them, knew about some other work that Schmidt had done and it did not appear to be satisfactory.
The trial court found that the board, within its judgment, properly awarded the contract to Joyce as the lowest responsible bidder and that there were funds available for the purposes of paying such contract. Judgment was rendered dismissing the action. The plain
It is tbe contention .of tbe plaintiff that tbe board, pursuant to tbe law, did not award tbe contract to tbe lowest bidder and that there were not sufficient funds available for purposes of its payment.
Decision.
Concerning such contracts, tbe law provides that the lowest responsible bid must, in all cases, be accepted. Chap. 49, Laws of 1921. It is well recognized that a responsible bid involves tbe elements of tbe ability, capacity, reputation, experience, and efficiency of tbe bidders. Responsibility must be determined as well as tbe pecuniary amount. 36 Cyc. 876; Butler v. Darst, 38 L.R.A.(N.S.) 655, note. Tbe county commissioners have a discretion to exercise in this regard. 15 C. J. 551; 7 R. C. L. 943; 1 Abbott, Mun. Corp. § 268. There is no showing that they did not exercise their best judgment within the discretion they possessed in selecting tbe lowest responsible bidder; nor that they acted in bad faith or other than for the best interests of tbe county. In their judgment tbe small difference in dollars between tbe bids offered might be far out-weighed by tbe ability, efficiency, and facilities of tbe contractor to whom tbe award was made. It is now shown in tbe record that either Niedermeyer or Schmidt possessed a responsibility in this sense equal to that of Joyce. Clearly, there are funds available. See Boetcher v. McDowell, 43 N. D. 178, 174 N. W. 759. Tbe transfer from tbe emergency fund was not made by reason of the injunctional proceedings. We are of the opinion that tbe findings of tbe trial court should be sustained. The judgment is affirmed with costs.
Concurrence Opinion
(specially concurring). Under the facts in this case, it appears to me that tbe county commissioners in accepting tbe lowest responsible bid, acted in good faith and exercised their discretion.
I, therefore, concur in tbe conclusions reached by the principal opinion on the grounds stated in paragraph 1, of the syllabus, which are decisive of tbe case.