Coyne-Delany Co., Inc. v. Capital Development Bd. of State of Ill.

• Citation: 616 F.2d 341
• Decision Date: 22 February 1980
• Docket Number: COYNE-DELANY,No. 79-1928,79-1928
• Parties: CO., INC., Plaintiff-Appellee, v. CAPITAL DEVELOPMENT BOARD OF the STATE OF ILLINOIS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 341

616 F.2d 341

COYNE-DELANY CO., INC., Plaintiff-Appellee, v. CAPITAL DEVELOPMENT BOARD OF the STATE OF ILLINOIS et al.,

Defendants-Appellants.

No. 79-1928.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1980.

Decided Feb. 22, 1980.

Robert G. Epsteen, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

John F. Canna, Chicago Heights, Ill., for plaintiff-appellee.

Before SWYGERT, PELL and TONE, Circuit Judges.

PER CURIAM.

The State of Illinois had an unfortunate experience with plaintiff's newly-installed flush valves in Stateville prison. Whether rightly or not, the prison authorities concluded that plaintiff's valves, and not the prison plumbing system, were at fault and requested the state purchasing agency to specify another manufacturer's valves for the next rehabilitation project at the prison. The purchasing agency did so. Plaintiff then brought this action under 42 U.S.C. § 1983, seeking to enjoin the state agency from specifying the competitor's valves. After an evidentiary hearing on the cause of the problems at Stateville and the merits of the competing flush valves, the district court issued a preliminary injunction as requested by the plaintiff. We reverse.

We believe the principles that govern this case are those declared in Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). Although, as the district court noted, concepts of standing may have changed since Perkins, the underlying rationale of that case has not: government enjoys a broad freedom to deal with whom it chooses on such terms as it chooses; no one has a "right" to sell to the government that which the government does not wish to buy. Thus the Court said,

Like private individuals and businesses, the Government enjoys the unrestricted power . . . to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.

Id. at 127, 60 S.Ct. at 876. We believe state governments, like the federal government, possess this power. A bidder on a government contract has no legally enforceable rights against the award of the contract to a competitor other than those the government has seen fit to confer. Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080, 1083, 1086 (6th Cir. 1975). Those who bid on state government contracts are subject to the same principle. A supplier such as plaintiff, who hopes to sell goods through a wholesaler to bidders on a state contract, clearly is in no better position than a bidder. Illinois has not conferred any right on bidders, Polyvend, Inc. v. Puckorius, 77 Ill.2d 287, 32 Ill.Dec. 872, 395 N.E.2d 1376 (1979), or, a fortiori, on those who would supply goods to bidders. In making "purchases necessary to (its) operation of . . . Government," the executive branch of a state government, no less than the federal executive branch, has an "adequate range of discretion free from vexations and dilatory restraints at the suits of prospective or potential sellers." Perkins v. Lukens Steel Co., supra, 310 U.S. at 127, 60 S.Ct. at 877. The actions of the State of Illinois in this case were well within this range of discretion.

The rationale of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), is, in our opinion, inapplicable to the procurement situation; but even if it were, plai...