City of Dayton ex rel. Scandrick v. McGee

• Decision Date: 29 July 1981
• Docket Number: No. 80-1564,80-1564
• Parties: , 21 O.O.3d 225 CITY OF DAYTON, ex rel. SCANDRICK, Appellee, v. City of Dayton Mayor McGEE et al., Appellants.
• Court: Ohio Supreme Court

Page 356

67 Ohio St.2d 356

423 N.E.2d 1095, 21 O.O.3d 225

CITY OF DAYTON, ex rel. SCANDRICK, Appellee, v. City of Dayton Mayor McGEE et al., Appellants.

No. 80-1564.

Supreme Court of Ohio.

July 29, 1981.

Pickrel, Schaeffer & Ebeling, William L. Havermann and Frank M. Root, Jr., Dayton, for appellee.

Thomas G. Petkewitz, City Atty., and Thomas P. Randolph, Dayton, for appellants.

PER CURIAM.

Unless all bids are rejected, Section 35.13 of the Dayton Revised Code of General Ordinances requires that contracts be awarded to the "lowest and best" bidders. ¹ The sole issue before this court is whether the appellants' use of the unannounced residency criterion in determining which bid was "lowest and best" constitutes an abuse of discretion. Were the question simply one of which bid was lowest, the answer would be clear. ² Appellants, however, were not required to award the contract to the lowest bidder; rather, they were empowered to make a qualitative determination as to which bid was both lowest and "best."

In reaching their decision, as to which bid was lowest and best, appellants were required by ordinance to consider only the bidder's affirmative action program and its "probable effectiveness." Appellants had "no problems" with the affirmative action programs of either Fryman-Kuck or Schroeder. Additionally, it was acknowledged that both bidders were capable of performing the contract in an acceptable manner. Thus, in these important areas, the qualifications of Fryman-Kuck and Schroeder were identical. The contractors differed in only one respect Schroeder was a "resident" of the city of Dayton, whereas Fryman-Kuck was not. ³

Appellants argue that, in the exercise of their sound discretion, they were entitled to consider and give controlling weight to the fact that Schroeder was a city "resident." Appellants, through the city deputy director of law, advanced, as the rationale for favoring "resident" bidders, the assertion that such bidders offered "year-round employment with the city and * * * (paid) city income and property taxes. The permanent tax base provided by companies situated within the city is an essential element in the city's ability to provide necessary municipal services to its citizens." In support of this contention, the director of the city's department of urban development stated that it was one of the city's "premier policies" to encourage businesses to locate within the city and, in furtherance of this policy, appellants awarded contracts to businesses which did locate within the city. The Court of Appeals held that utilization of the unannounced criterion of residency constituted an abuse of discretion. For the reasons set forth below, we agree.

"The meaning of the term 'abuse of discretion' * * * connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude * * *." Steiner v. Custer (1940), 137 Ohio St. 448, 31 N.E.2d 855, paragraph two of the syllabus; Conner v. Conner (1959), 170 Ohio St. 85, 162 N.E.2d 852; Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685, and State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144. "Arbitrary" means "without adequate determining principle; * * * not governed by any fixed rules or standard." Black's Law Dictionary (5 Ed.). "Unreasonable" means "irrational." Id. Under the facts of the instant cause, we find appellants' actions to have been both arbitrary and unreasonable.

Despite the purported primacy of the policy to prefer resident bidders, appellants did not announce or disclose the existence of such policy to the bidders until after the bids were opened. It appears, therefore, that appellants made a conscious decision to withhold this pertinent information until after they had actual knowledge of the amounts of the bids. In effect, appellants modified their requirements without notice. This action tended to undermine the integrity of the competitive bidding process. See Boger Contracting Corp. v. Board (1978), 60 Ohio App.2d 195, 396 N.E.2d 1059.

Moreover, the record demonstrates no logical nexus between appellants' goal of increasing the city's tax base and their decision to award the contract to Schroeder. On the state of the record, it is impossible for appellants to have reached any reasonable conclusion that would justify the deference shown Schroeder. ⁴ The arbitrary nature of appellants' decision is illustrated by the following testimony presented at the hearing on the injunction:

"(Appellants' counsel Mr. Randolph) Q. Now here again I might be engaging in speculation but, or asking you to, when you say to award contracts to business, that is not in every circumstance, is it?

"(Schierloh) A. No it's not.

"(Objection.) * * *

"MR. RANDOLPH: The point is, your honor, the recommendation was made by the department director here and we would not want to leave the court with the impression that he always recommends the contract go to the local bidder and the question is if the difference in the award were, say ten percent, what his recommendation would be, would his recommendation be the same? * * *

"(Schierloh) A. Well if you, if the items have been entered and as we state, the difference is approximately one half of one percent difference, we'd recommend we go this way. If the difference were many percentages greater than that, I would not say we at all could recommend that to the department or City Manager for approval, in fact, we have not in the past done that." (Emphasis added.)

The evil here is not necessarily that "resident" bidders are preferred but that there are absolutely no guidelines or established standards for deciding by how "many percentages" a bid may exceed the lowest bid and yet still qualify as the "lowest and best" bid. Absent such standards, the bidding process becomes an uncharted desert, without landmarks or guideposts, and subject to a city official's shifting definition of what constitutes "many percentages." Neither contractors nor the public are well served by such a situation.

While municipal governing bodies are necessarily vested with wide discretion, such discretion is neither unlimited nor unbridled. The presence of standards against which such discretion may be tested is essential; otherwise, the term "abuse of discretion" would be meaningless. In its opinion, the trial court stated that: " * * * (t)he lack of an announced standard and priority of miscellaneous considerations allows unbridled discretion and political favoritism." We find neither allegation nor proof of political favoritism. However, we do find, due to the lack of announced standards, that appellants' action in this case was arbitrary. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

STEPHENSON, PAUL W. BROWN, SWEENEY, LOCHER, HOLMES and CLIFFORD F. BROWN, JJ., concur.

FRANK D. CELEBREZZE, C. J., dissents.

STEPHENSON, J., of the Fourth Appellate District, sitting for WILLIAM B. BROWN, J.

FRANK D. CELEBREZZE, C. J., dissenting.

Since, in my estimation, relator has failed to establish his standing to even argue the merits of whether the city commission abused its discretion in awarding the contract to Leo B. Schroeder, Inc., I respectfully dissent.

The majority opinion, conveniently, omits the critical consideration in this...