229 N.E.2d 88 | Ohio Ct. App. | 1967
Relators are seeking a writ of mandamus commanding the respondent, Board of County Commissioners, to disregard all bids submitted for the construction of two incinerator plants. Relators allege that the plans and specifications prepared and distributed to contractors for bids are illegal. This matter is before the court on respondent's demurrer to the petition on the grounds (1) that relators lack standing to sue, and (2) that the petition fails to state facts showing a cause of action. They allege that they are bringing this action as taxpayers under authority of Section
Considering first our own jurisdiction in an action in mandamus originating in this court, we point out that ordinarily relators bringing the action as taxpayers would have an adequate remedy in the ordinary course of law by way of injunction, as provided in Section
Coming then to the question of standing to sue, relator Frank W. Schaefer alleges that he is a resident of and a taxpayer in Montgomery County, Ohio; that he represents relator Plibrico Company and does business as Plibrico Sales and Service Co., Division of Frank W. Schaefer, Inc.; and that Plibrico Sales and Service Co., Division of Frank W. Schaefer, Inc., is a taxpayer in Montgomery County, Ohio, and has been in the business of constructing incinerators and refractories for many years. These allegations are admitted by the demurrer to the petition.
It is respondent's contention that relators have not the capacity to sue in this case because their action seeks pecuniary benefits for themselves rather than for the benefit of the public *135 generally. Respondent cites 52 Ohio Jurisprudence 2d 3, 4, Section 2, and Saunders v. Board of Education, 42 Ohio Law Abs. 172, in support of this argument.
Section
A taxpayer's action in mandamus may be maintained by a party in a private capacity to enforce the right of the public to the performance of a public duty, as distinguished from a purely private right of the taxpayer to the performance of a duty imposed upon a public servant. State, ex rel. Nimon, v. Villageof Springdale,
At page 4, the court said that: "In a long line of cases, this court has repeatedly recognized the rule, as stated in 35 Ohio Jurisprudence 2d 426, Section 141, that `where the question is one of public right and the object of the mandamus is to procure the enforcement of public duty, the people are regarded as the real party and the relator need not show that he has any * * * special interest in the result, since it is sufficient that he is interested as a citizen or taxpayer in having the laws executed and the duty in question enforced * * *.'* * *"
By analogy it follows that the existence of any "special interest in the result" should not defeat the right of an admitted taxpayer to maintain such an action.
The allegations in the petition, admitted by the demurrer, are such as to bring this action squarely within the rule thus stated in the Nimon case.
Because, in addition, it is alleged, and admitted by the demurrer, that the relators directed a letter to the Prosecuting Attorney of Montgomery County requesting him to take action to prevent the respondent from entering into any contract based upon such plans and specifications and that he refused to take such action, we conclude that relators do have standing to bring this action.
Coming then to the question of the petition stating facts sufficient to constitute a cause of action, relators allege the respondent is proposing to construct two incinerator plants in *136 Montgomery County for use as public buildings; that plans and specifications for the construction of such incinerators were prepared and distributed for the construction of such incinerators; and that relators obtained a copy of such specifications in order to prepare a bid as an incinerator subcontractor.
Relators further allege that such specifications are illegal for the construction of a public building because they are drawn in such a way as to permit only one company to meet the qualifications required of an incinerator subcontractor; and that the following are pertinent sections of such specifications:
Page 31-01. Section 31.02. "Qualifications of Incinerator Subcontractor"
"He shall have been, and shall be currently exclusively engaged in the furnishing and installing of municipal incinerators for the past fifteen (15) years.
"He shall have furnished and installed equipment of the type he proposes in at least five (5) municipal plants in different cities or counties in the United States. The five plants must currently be operating and giving satisfactory service.
"At least two of the five municipal or county installations shall have incinerator units in satisfactory operation of the same size and capacity as specified in these specifications and related drawings.
"At least two of the five plants shall be successfully reclaiming and selling detinned tin cans."
Page 31-05 from Section 31-14:
"Each drying grate shall be a type specifically designed for the predrying of municipal refuse in an incinerator and shall be manufactured and installed by the Incinerator Subcontractor or the principal Owners. The incinerator subcontractor or the principal Owners shall have manufactured this particular grate for this service for at least twenty (20) years and he shall have manufactured and installed drying grates for at least five proven municipal or county installations now in service using the same type grate of which at least one installation has been in constant satisfactory service for at least twenty (20) years and at least two additional installations which have been in constant satisfactory service for at least five (5) years."
Page 31-07 from Section 31-17:
"Each ignition grate shall be a type specifically designed *137 for the purpose of preliminary burning of municipal refuse and providing heat for the predrying of refuse in the drying grates and providing heat to assist the burning of municipal refuse in the rotary kiln. The ignition grate shall be manufactured and installed by the Incinerator Subcontractor or his principal Owners; and the Incinerator Subcontractor or his principal Owners shall have manufactured this particular grate for this service for at least twenty (20) years. He shall have also manufactured and installed ignition grates for at least five (5) proven municipal or county installations now in service using the same type grate of which at least one installation has been in constant satisfactory service for at least twenty (20) years and at least two additional installations that have been in constant satisfactory service for at least five (5) years."
Page 31-08 from Section 31-19:
"Each rotary kiln shall be a type specifically designed for the purpose of burning municipal refuse and shall be designed, furnished and installed by the Incinerator Subcontractor or his principal Owners and the Incinerator Subcontractor or his principal Owners shall have designed, furnished and installed rotary kilns for this particular service for at least twenty (20) years.
"He shall also have at least five (5) proven municipal or county installations now in service using the same type kiln of which at least one installation has been in constant satisfactory service for at least twenty (20) years and two additional installations that have been in constant satisfactory service for at least five (5) years."
Relators also allege that the instructions to bidders in such specifications contain the following language as No. 19:
"The furnishing and installing of the incinerator and complementary equipment is a part of the contract and the cost of same is to be a part of and included in the amount bid.
"This equipment will be furnished and installed by:
"International Incinerators, Inc. Walton Building Atlanta 3, Georgia Phone — Jackson 3-1678
"All bidders qualified as General Contract Bidders may obtain a copy of the complete incinerator proposal from the *138 above company. A copy of this proposal is on file with the Engineers. General Contract Bidders may confirm their proposals at this location."
Section
The first 20 sections of this chapter pertain to "state buildings," the next 29 sections pertain to "county buildings and bridges," and the last 10 sections pertain to "contracts for constructions."
Section
The requirements for competitive bidding on contracts for the erection of county buildings by private contract, set forth in Section
Section
Section
In Columbus Building and Construction Trades Council v.Moyer,
It is our conclusion that the incinerators, their complementary equipment and their installation are included in the terms "trade or kind of mechanical labor, employment, or business" as used in Sections
Section
The respondent board was required by Section
The respondent board chose, in the instant case, to do *140 neither. Rather, it invited bids under specifications which limited each general or prime contractor bidder's discretion as to the subcontractor whose services or material he would use to a single firm, i. e., International Incinerators, Inc.
Such action is clearly an effort to avoid the salutary provisions of the statute requiring competitive bidding on public contracts, whatever hair-splitting arguments may be made concerning some of the concededly ambiguous provisions in Chapter 153, Revised Code. We conclude, accordingly, that the specifications hereinbefore described, more particularly that in paragraph 19, designating International Incinerators, Inc., as the only acceptable subcontractor for the manufacture and installation of incinerator facilities in the structures in question, are not in conformity with the statutes requiring competitive bidding on county contracts.
It has been said that no chain is any stronger than its weakest link. The incinerator machinery, its complementary equipment and its installation are a part, and probably the largest and most important part, of the whole contract. Respondent claims the right to so write its specifications so as to exempt this part of the contract from competitive bidding. The mandatory provisions of the statutes requiring competitive bidding on the whole contract must be held to apply as well to its component parts relating to each separate trade or kind of mechanical labor, employment or business and for the furnishing of materials therefor. Any other interpretation of these statutes would rob them of their intended force and effect.
It remains only to consider whether the nature of the work or service is such as to exempt it from the force of such statutes.
In State, ex rel. Doria, v. Ferguson, Aud.,
"Although contracts relating to public projects, involving the expenditure of money, may not ordinarily be entered into by public officials without advertisement and competitive bidding as prescribed by law, an exception exists where the contract involves the performance of personal services of a specialized nature requiring the exercise of peculiar skill and aptitude."
That case involved a contract for furnishing certificates of title on various parcels of real estate through which the Department of Highways desired to construct a highway. *141
It is argued in the reply brief that the respondent board "with expert advice, has determined that the incinerator and complementary equipment sought, with the requisite expertise for installation, are available from only one source. * * *."
Whether the board's determination in this regard is based on actual facts concerning the state of the art or industry of manufacture and installation of incinerator equipment is a matter which the respondent board must plead and prove — we cannot take judicial notice of such facts.
We recognize the right of respondent to establish "Qualifications of Incinerator Subcontractor" in their specifications. See, also, Gamewell Co. v. Phoenix,
Considering the specifications relating to Incinerator Subcontractors together with the Instructions to Bidders set forth in the petition, we must conclude that respondent's specifications have effectively stifled competitive bidding for the incinerators, their complementary equipment and their installation. It may be that evidence would show that these matters should be excepted from competitive bidding. But, we are required to render our judgment upon the facts alleged by relators and admitted by respondent's demurrer. We consider that one who seeks to excuse himself from the operation of mandatory statutes should be required to prove the facts warranting such exception. See 21 Ohio Jurisprudence 2d 181, Section 169. The case of State, ex rel. Doria, v. Ferguson,
We conclude that the facts alleged by relators and admitted by respondent show that respondent is about to enter into a contract which is illegal because it is made without compliance with the statutes requiring competitive bidding. Such facts further show that relators have capacity to maintain this action as taxpayers and that, in the absence of any evidence of record showing the product and services in question are absolutely unique, relators have a clear legal right to the relief sought.
Respondent's demurrer will be overruled.
Demurrer overruled.
CRAWFORD, P. J., and KERNS, J., concur.