Summary
In Executone, we affirmed the dismissal of a complaint in mandamus because it alleged nothing more than that a board of county commissioners had not awarded a government contract to the lowest and best bidder.
Summary of this case from State ex Rel. v. Guernsey CtyOpinion
No. 82-1704
Decided July 3, 1984.
Counties — Mandamus to compel commissioners to accept bid of unsuccessful bidder — "Lowest and best bid," construed — No abuse of discretion shown, when — R.C. 307.90.
APPEAL from the Court of Appeals for Lucas County.
Appellant, Executone of Northwest Ohio, Inc., is an Ohio corporation engaged in the business of selling, installing and maintaining telephone systems. Appellees are the Board of Commissioners of Lucas County and its individual members.
Prior to July 23, 1982, appellees solicited bids for the sale, installation and maintenance of an electronic telephone system for the Government Center located in Toledo, Ohio. In response to the solicitation, appellant submitted a detailed bid for consideration. Subsequent to the closing date for the taking of bids, appellees unanimously passed a resolution whereby it was agreed that the contract for the telephone system would be awarded to Tel-Matic, Inc., also an Ohio corporation and a competitor of appellant.
Following the passage of the resolution, appellant brought this action in mandamus in the Court of Appeals for Lucas County. The complaint alleged that appellant had submitted the lowest and best bid and that the bid submitted by Tel-Matic, Inc., was neither the lowest nor the best. On this basis alone, the issuance of a writ of mandamus was sought ordering appellees to award the contract for the installation and maintenance of the telephone system in the Government Center to appellant. The court of appeals granted appellees' motion to dismiss the complaint for failure to state a claim upon which relief could be granted.
Appellant's complaint provides, in pertinent part, as follows:
"7. Of the bids submitted to Respondents, Relator [Executone] had the lowest and best bid.
"* * *
"9. Subject to the concurrence of the City of Toledo, Respondents by unanimously passed resolution have agreed to award the contract for such telephone system to Tel-Matic, Inc., an Ohio corporation.
"* * *
"11. The said bid of Tel-Matic, Inc., is neither the lowest nor the best bid.
"12. Both the specifications and law require that the contract be awarded to the lowest and best bidder.
"13. The Relator has no plain and adequate remedy in the ordinary course of the law and will suffer damage unless it is awarded the contract.
"WHEREFORE, relator demands that a writ of mandamus be issued ordering the respondents to award the contract for the installation of the telephone system in the Government Center to the relator * * *."
The cause is now before this court on an appeal as of right.
Mr. Walter E. Apple, for appellant.
Mr. Anthony G. Pizza, prosecuting attorney, and Mr. Nick Batt, for appellees.
R.C. 307.90 provides, with respect to boards of county commissioners, in pertinent part:
"The award of all contracts subject to sections 307.86 to 307.92 of the Revised Code shall be made to the lowest and best bidder. * * * The contracting authority may reject all bids."
In construing the language "lowest and best bidder," the Court of Appeals for Clark County reasoned in Altschul v. Springfield (1933), 48 Ohio App. 356, 362 [1 O.O. 522], as follows:
"The statutes of this state as to most public work provided some years ago for the acceptance of only the lowest bid. That was subsequently amended so as to read `lowest and best bid'. This amendment clearly indicates that the Legislature recognized that an element other than the mere low dollar bid often enters into the letting of a contract. Hence the amendment providing that the contract should be let to the lowest and best bidder followed.
"This amendment, therefore, places in the hands of the * * * [public] authorities the discretion of determining who under all the circumstances is the lowest and best bidder for the work in question.
"This discretion is not vested in the courts and the courts cannot interfere in the exercise of this discretion unless it clearly appears that the * * * [public] authorities in whom such discretion has been vested are abusing the discretion so vested in them." (Emphasis sic.)
See, also, Dayton, ex rel. Scandrick, v. McGee (1981), 67 Ohio St.2d 356, 358 [21 O.O.3d 225]; Boger Contracting Corp. v. Board (1978), 60 Ohio App.2d 195, 199 [14 O.O.3d 176]; State, ex rel. Walton, v. Hermann (1900), 63 Ohio St. 440.
Moreover, the aforementioned statement by the court in Altschul, supra, constitutes an application of the well-established principle that "* * * mandamus will not lie to substitute the discretion of a judicial tribunal for that of an administrative official, unless it is clearly shown that the refusal to perform the act constitutes an abuse of discretion." State, ex rel. Bd. of Edn., v. State Dept. of Edn. (1981), 67 Ohio St.2d 126, 128 [21 O.O.3d 79], citing State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581 [50 O.O. 465], and State, ex rel. Christman, v. Skinner (1933), 127 Ohio St. 55.
Regarding the term "abuse of discretion" by a public authority in the letting of a contract subsequent to the taking of bids, this court has recognized that such an abuse includes the utilization of unannounced criteria in selecting a bidder, Dayton, ex rel. Scandrick, v. McGee, supra, as well as fraudulent conduct or bad faith, State, ex rel. Shafer, v. Ohio Turnpike Comm., supra.
Appellant's complaint does not allege, nor does appellant argue herein, the utilization of unannounced criteria by the board of county commissioners. Nor does the complaint allege bad faith, fraudulent conduct or any other allegation which could be construed to constitute an abuse of discretion. Instead, the complaint simply alleges that appellant submitted the "lowest and best bid." Since under R.C. 307.90 the determination of which bid constituted the "lowest and best bid" involved the exercise of a certain degree of discretion by appellees, appellant's complaint merely asked the court of appeals to substitute its discretion for that which was exercised by appellees. Under such circumstances, mandamus will not lie, and the court of appeals correctly dismissed the complaint. Cf. State, ex rel. Britton, v. Scott (1983), 6 Ohio St.3d 268.
For the foregoing reasons, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.