731 N.E.2d 720 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *524
Appellants, Smith Johnson Construction Co. and Robert Johnson ("Smith-Johnson"), appeal to this court from the trial court's decision adopting the magistrate's recommendation to deny appellants' motions for declaratory and injunctive relief from appellee Ohio Department of Transportation's ("ODOT's"), award of a $3,818,130 road improvement contract to appellee R.F. Scurlock Company ("Scurlock"). See ODOT Tabulation of Bids dated December 31, 1996. The record reflects the following: The contract awarded concerns project No. 888 (96), which was to improve a 1.51 kilometer section of State Route 73 in Scioto County. Pursuant to the provisions set forth in R.C.
Appellants filed their motions seeking declaratory judgment and injunctive relief from the contract award on the grounds that the ODOT contract should not have been awarded to Scurlock because the Scurlock bid was non-responsive and the Scurlock bid bond, which was required to be posted pursuant to R.C.
In adopting the magistrate's decision, the trial court denied appellants' motions for declaratory and injunctive relief. Appellants argue that the trial court erred in determining that the contract was valid and not subject to injunction for the following reasons: when Scurlock submitted its bid, it failed to list a cost of "clearing and grubbing" work, which is a term used to describe the job of site preparation prior to actual construction or road improvement. The cost of grubbing and clearing was estimated by ODOT to be approximately $100,000. As *526 well, Scurlock posted a bid bond which was not in conformity with that requested by ODOT.
Appellants argue that these factors mandated that ODOT reject the Scurlock bid pursuant to statute and that the "incomplete" bid and defective bid bond gave appellee Scurlock an unfair advantage over appellants and other bidders. See R.C.
Appellants assert the following assignments of error:
"1. The trial court erred in not enjoining ODOT's contract based on an invalid and nonresponsive bid.
"2. The trial court erred in finding the bid of R.F. Scurlock was responsive and did not give Scurlock a competitive advantage over the other bidders.
"3. The trial court erred in finding that R.F. Scurlock's statutorily deficient bid bond did not invalidate the contract award to R.F. Scurlock."
The granting of declaratory judgment and injunctive relief are matters of judicial discretion. Control Data Corp. v. Controlling Bd. of Ohio
(1983),
Appellee ODOT is granted statutory authority to enter into competitive bid contracts with contractors for highway construction and repair pursuant to R.C.
"Generally, courts in this state should be reluctant to substitute their judgment for that of [government] officials in determining which party is the 'lowest and best bidder.' "The rule is generally accepted that, in the absence of evidence to the contrary, public officers, administrative officers and public boards, within the limits of the jurisdiction conferred by law, will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner. All legal intendments are in favor of the administrative action.'" Cedar Bay Constr., Inc. v. Fremont (1990),
The proof necessary to support the granting of an injunction against an agency's award of a contract must be clear and convincing. W C.I./Waltek v. Ohio Bldg. Auth. (Aug. 4, 1994), Franklin App. No. 93APE11-1583, unreported, 1994 WL 409780.
Bids for ODOT contracts are to be submitted and evaluated in accordance with the provisions set forth in R.C.
R.C.
The first question to be considered is whether Scurlock's bid was nonresponsive and invalid, and thereby subject to rejection by the director pursuant to R.C.
"Although an agency has broad discretion to grant bids based on rules it has established, the legislature has declared that an agency must award its bid to the lowest "responsive and responsible bidder' as defined in R.C.
R.C.
"[A] bidder on the contract shall be considered responsive if his proposal responds to bid specifications in all material respects and contains no irregularities or deviations from the specifications which would affect the amount of the bid or otherwise give him a competitive advantage." See, also, Leaseway at 103-104,
In a bid for a construction project, not every variation from the instructions or specifications will destroy the competitive character of the bid. However, a substantial variation, one that affects the bid price and gives the bidder an advantage or benefit not allowed other bidders, will destroy the competitive nature of the bid. Natl. Eng. ContractingCo. v. Cleveland (C.P. 1957), 146 N.E.2d 340, 76 Ohio Law Abs. 303. If "a bid complies with the specifications in all material respects, and contains no irregularities which give one bidder a competitive advantage over others, the bid will be deemed responsive, notwithstanding the omission of an item called for by the specifications." Kokosing Constr.Co. v. Dixon (1991),
R.C.
R.C.
The trial court found, in adopting the magistrate's decision filed March 25, 1997:
"In this case, acceptance of the Scurlock bid did not change the total cost of the proposal. As ODOT points out, taxpayers were rewarded by not having to spend the estimated $100,000 required to prepare the project site [by means of clearing and grubbing]. (Fn. omitted.) Moreover, contrary to [appellants'] view, the *529
court finds that under the circumstances, there was no competitive advantage to Scurlock over [appellants] or other bidders. The magistrate correctly found that at 2.5% of the total project cost, the error in leaving the clearing and grubbing portion of the proposal blank was not a substantial error as contemplated by R.C.
From the record, this court finds that the trial court did not err in determining that the Scurlock bid "error" was not substantial and that the director did not abuse his discretion in accepting the Scurlock bid as responsive. Next, we must determine whether the court abused its discretion in finding that the bid did not give Scurlock an unfair competitive advantage over other bidders.
It is axiomatic that the performance of the contract formed by the acceptance of a winning bid must include all the material parts of the bid, as they were described, delineated, or otherwise identified in the bid by the bidder at the time of the bid opening. See R.C.
In the instant matter, ODOT did not waive the "error" but determined to treat the form of the bid as declaring that clearing and grubbing "work was to be done at [a zero dollar] cost," and awarded the contract to Scurlock on that basis. (Magistrate's decision, at 2.) Scurlock accepted all the material parts of the contract, including grubbing and clearing at the zero dollar cost.
The total Scurlock bid was approximately $165,700 lower than appellants' bid, including the $100,000 savings from the "no cost" site preparation. The trial court found that the Scurlock bid was deemed complete in its terms and that ODOT had accepted the Scurlock bid based upon a "bid" of a zero dollar cost for grubbing and clearing. We find that the price-affecting aspect of the Scurlock bid was not waived and did not provide Scurlock with a competitive advantage not available to other bidders.
This court has held that a submitted bid responded to the required specifications in all material respects and contained no irregularities or deviations which would affect the amount of the bid or give a competitive advantage where the bid proposal was signed and the bidder was at all times bound by the bid submitted. WC.L/Waltek at 12. Bidders are "bound" by their submitted bids by the bid terms and by virtue of a "bid guaranty in the form of a certified check * * * or bid bond" pursuant to R.C.
The record indicates that Scurlock posted the "bid bond" required by R.C.
R.C.
"* * * In the event the director decides the conditions for withdrawal have not been met, the director may award the contract [encompassing the bid in error] to such bidder. If such bidder does not then enter into a contract and furnish the contract bond as required by law, the director may declare forfeited the certified check or bid bond * * * and award the contract to the next higher bidder. * * *" R.C.
By virtue of this statutory authorization, the bidder in error submits to be bound by the terms of his bid or face the possibility of losing his bond. ODOT did not waive the "error" in Scurlock's bid but required Scurlock to perform under its bid proposal or risk forfeiture of its bid bond. Scurlock was locked into its bid by virtue of the forfeiture provisions of R.C.
The trial court found that the "failure to execute the proper bid bond is likewise not fatal to the awarding of this contract to Scurlock." (Magistrate's decision, at 4.) The court found that, upon award of the contract to Scurlock and its subsequent posting of the contract bonds required by R.C.
The record provides sufficient evidence to support the magistrate's conclusion that Scurlock could not "easily or automatically withdraw a contract, at least in the circumstances of this case," and that Scurlock was indeed ultimately bound by both its bid and bond. The bid did not give Scurlock an unfair competitive advantage over other bidders. (Magistrate decision, at 4.) The record further *531 provides support for the trial court's determination that appellants failed to carry their burden of proving by clear and convincing evidence that it was entitled to the preliminary injunction it had requested. There was evidence to support the court's denial of appellants' motions for declaratory and injunctive relief as well as its affirmation of ODOT's decision to award the bid contract to appellee Scurlock.
For the foregoing reasons, this court finds that the trial court did not abuse its discretion in determining that appellees' contract was valid and in denying appellants' request for injunctive relief. Appellants' assignments of error are overruled, and the trial court's decision is affirmed.
Judgment affirmed.
PEGGY BRYANT and LAZARUS, JJ., concur.