Bowen Engineering Corp. v. W.P.M. Inc.
| Decision Date | 14 August 1990 |
| Docket Number | No. 79A02-8911-CV-597,79A02-8911-CV-597 |
| Citation | 557 N.E.2d 1358 |
| Parties | BOWEN ENGINEERING CORPORATION, Appellant (Intervening Defendant), and Board of Commissioners of Tippecanoe County, Indiana, Appellant (Defendant), v. W.P.M. INC., a Michigan Corporation, Patrick Anthony Leoni and Jim Lee Terry, Appellees (Plaintiffs). |
| Court | Indiana Appellate Court |
Thomas A. Withrow, B. Keith Shake, Henderson, Daily, Withrow & Devoe, Indianapolis, for appellant Bowen Engineering Corp.
Lawrence B. O'Connell, Gothard & O'Connell, Lafayette, David C. Campbell, Tammy J. Meyer, Bingham Summers Welsh & Spilman, Indianapolis, for appellant, Board of Com'rs of Tippecanoe County, Indiana.
Peter G. Tamulonis, Kightlinger & Gray, Indianapolis, for amicus curiae Indiana Constructors, Inc.
Diane S. Shea, Ass'n of Indiana Counties, Indianapolis, for amicus curiae Ass'n of Indiana Counties.
Eric J. Flessland, Butzel Long Gust Klein & Van Zile, Birmingham, Mich., Lou Pearlman, Pearlman & Chosnek, Lafayette, for appellees.
Defendant-appellant Board of Commissioners of Tippecanoe County (Board) and intervenor-defendant-appellant Bowen Engineering Corp. (Bowen) appeal from the trial court's judgment which enjoined the Board from contracting with Bowen for a reconstruction project and from rejecting the bid from plaintiff-appellee W.P.M. Inc. (WPM), claiming the trial court improperly consolidated the hearing on the preliminary injunction with the trial on the merits and that the trial court abused its discretion by substituting its judgment for the Board's when ordering it to consider WPM's bid.
We affirm.
The facts most favorable to the trial court's judgment reveal that in July and August 1988, the Board solicited bids for the Parker Ditch Reconstruction project (project) which was to provide drainage for the new Subaru/Isuzu facility located near Lafayette. The Board received five bids:
WPM: $2,454,820.56
Bowen: $2,483,525.00
T.G. Excavating: $2,541,108.07
Fauber Construction: $2,730,000.00
E.H. Hughes: $2,925,952.00
On September 19, 1988, the Board rejected WPM's bid because the bid and bond were addressed to the Indiana Employment Development Commission, and not to the Board. It awarded the contract to Bowen. On September 20, 1988, WPM brought suit against the Board and the court allowed WPM to amend its bid to correct its error. The court also ordered the Board to award the contract to WPM. Bowen filed an original action in the Indiana Supreme Court, which issued a writ of mandamus and ordered the trial court to delete that portion of its order which directed the Board to award the contract to WPM (because the court itself could not act for the Board).
After remand, the Board decided to reject all of the bids and resolicit a second round of bids for the project. WPM brought suit again, and the court decided that once the Board had accepted one of the bids, it did not have the authority to reject all of the bids and resolicit new bids. The court ordered the Board to consider only the original round of bids. No appeal from this decision was taken.
On remand, the Board again rejected WPM's bid, awarded the contract to Bowen, and issued the following pertinent findings on July 20, 1989:
"2. That the bidders' proposed plan or plans for performing the public work and the equipment that they have available for the performance of the public work in the form solicited on Form No. 96 prescribed by the State Board of Accounts is a material factor in the Board's determination of which contractor has duly considered the required performance, has planned for completion of the Project in a thorough and expeditious manner, and has sufficient resources available to complete the Project, without attempting to overly burden the bidding process in an anti-competitive manner.
3. The Board rejects the W.P.M., Inc. bid for failing to provide its proposed plan or plans for performing the public work and the equipment that it has available for the performance of the public work as required by I.C. 36-1-12-4(b)(6) and Form No. 96, Bid for Public Works, Part II, Section II, Questions 1 through 4.
. . . . .
6. In the event it is later determined upon judicial review that the Board is not properly permitted to make the determination noticed in # 3 above, the Board having reviewed the comparative experiences, reputation, abilities, capacity, and other subjective factors relative to the "responsibleness" of W.P.M., Inc. and Bowen Engineering Corporation, finds these subjective factors to materially favor Bowen Engineering Corporation, and, therefore, assuming for the sake of argument the determination # 3 above was not material, not withstanding [sic] the fact that Bowen's bid exceeds W.P.M.'s bid by approximately 1%, the Board deems it in the best interest of the County to award the Project to Bowen."
On August 29, 1989, WPM, along with Patrick Leoni and Jim Terry, initiated the present action in the Tippecanoe Circuit Court against the Board, seeking to enjoin the Board from awarding the contract for the project to Bowen. On September 1, 1989, Bowen moved to intervene. The Board moved for a change of venue from the judge and on September 15, 1989, a special judge appeared, qualified, and assumed jurisdiction of the case. The trial court set a hearing date for all pending motions. The hearing was held on October 19, 1989, and the trial court allowed Bowen to intervene. Also at this hearing, the answers of WPM to Sec. 2 of Form 96 (the plan) were introduced into evidence. On October 20, 1989, the trial court issued the following judgment:
"ORDER
On October 19, 1989, a hearing was held in this cause on all pending motions, Bowen Engineering Corporation was allowed to intervene as a defendant and counsel for plaintiffs and defendants were allowed to argue, both extensively and vigorously, and to present evidence on anything they thought relevant. Affidavits and exhibits were presented as well as testimony.
Plaintiffs seek equitable relief under Trial Rule 65 which provides in (A)(2) that the court may order the hearing on the merits be consolidated with the hearing for preliminary injunction. That was done on September 15, 1989.
The scenario in this cause as brought out by the affidavits, exhibits, and testimony and clarified by the statements of counsel is as follows:
Plaintiff W.P.M., Inc., (W.P.M.) and defendant Bowen Engineering Corporation (Bowen) with others submitted bids to the defendant Board of Commissioners of the County of Tippecanoe (Board) for the Parker Ditch Reconstruction project.
The Board said 'No' to W.P.M. because W.P.M. used the wrong name on Form 96 submitted with the bid. Bowen, whose bid was higher than W.P.M., was chosen by the Board for the project.
The Tippecanoe Circuit Court said that W.P.M. could correct the name The Supreme Court of Indiana said that the Tippecanoe Circuit Court could not make the choice for the Board.
and that the Board should choose W.P.M.
The Board said that they would reopen bidding by rejecting all bids submitted.
The Fountain Circuit Court said the Board could not reject all bids and would have to choose one of the bids already submitted.
Roger F. Detzner, who was requested by the Board to evaluate bids when originally submitted, said that W.P.M. did not submit Section II of Form 96 but that was 'unimportant.'
W.P.M. said that it did submit Section II of Form 96.
The Board said that the failure of W.P.M. to submit Section II of Form 96 with its bid was not responsive and again said 'No' to W.P.M. and again chose Bowen. Besides, the Board said, all in all Bowen is better and it would be in the best interest of the county to go with Bowen.
The Indiana Legislature said that this was the type of behavior that they wanted to avoid.
The Board seems to be going to great lengths and expense to avoid giving the contract to the lowest responsive and responsible bidder as contemplated by the Indiana Legislature.
The Board contends that W.P.M. should post a bond to cover the expense the actions of W.P.M. could occasion.
The expense occasioned by the actions of the Board thus far in this action should be of concern, however, any increased expense caused by the Board should not be assessed against W.P.M.
IS THEREFORE ORDERED that the Board of Commissioners of the County of Tippecanoe is enjoined from entering a contract with Bowen Engineering Corporation for the Parker Ditch Reconstruction Project and from rejecting the bid of W.P.M. Inc., for the reasons set forth in its findings of July 20, 1989.
IT IS FURTHER ORDERED that the Board of Commissioners of the County of Tippecanoe is mandated to award the Parker Ditch Reconstruction project to the lowest responsive and responsible bidder on the basis of the bids submitted for August 22, 1988, including the answers of W.P.M. Inc., to Section II of Form 96.
IT IS FURTHER ORDERED that no bond shall be required."
Record at 548-50 (emphasis supplied).
Bowen and the Board raise several issues for our consideration, which we consolidate and restate as follows:
1. Whether the trial court erred when it consolidated the hearing on the preliminary injunction with the hearing on the merits?
2. Whether the trial court improperly substituted its judgment for that of the Board?
ISSUE ONE--Did the trial court err when it consolidated the hearing on the preliminary injunction?
PARTIES' CONTENTIONS--Bowen claims the trial court erred when it consolidated the hearing on the preliminary injunction with the hearing on the merits because the trial court gave no notice of its intention to consolidated the hearings. WPM responds that Bowen has demonstrated no prejudice arising from the lack of notice and is therefore not entitled to relief.
CONCLUSION--The trial court did not commit reversible error.
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