General Elec. Co. v. Turner, 38
| Decision Date | 11 July 1969 |
| Docket Number | No. 38,38 |
| Citation | 275 N.C. 493,168 S.E.2d 385 |
| Court | North Carolina Supreme Court |
| Parties | GENERAL ELECTRIC COMPANY, v. Dr. William L. TURNER; Eston Y. Brickhouse, Ed O'Herron; Samuel H. Johnson; Ralph H. Scott; Thorne Gregory; and Lindsay C. Warren, Jr. |
Robert Morgan, Atty. Gen., Henry T. Rosser, Asst. Atty. Gen., Eugene A. Smith, Raleigh, Trial Atty., for defendants.
Joyner, Moore & Howison, by Dan K. Moore and James M. Kimzey, Raleigh, for plaintiff.
The plaintiff instituted this action in which it filed a verified complaint alleging (1) the defendant William L. Turner is Director of the North Carolina Department of Administration, 'which Department is empowered * * * to supervise the letting of all contracts for the purchase of supplies, materials and equipment needed and required by all state departments, institutions and agencies'; (2) the defendant Brickhouse is 'State Purchasing Officer in charge of the purchase and contract division of the Department of Administration, which division has been delegated the authority to supervise the letting of all contracts for the purchase of supplies, materials and equipment needed and required by all State Departments, institutions and agencies'; and (3) the other named defendants constitute the Advisory Budget Commission which is empowered to act with the Director of Administration in convassing bids and awarding contracts.
The complaint further alleges the plaintiff, in response to the defendants' request, filed a responsible offer to comply with Bid No. 690462 by delivering special television transmitting equipment at the total price of $655,000 for Units I, II and III. The opening of the bids disclosed the plaintiff's was the lowest bid submitted on Units I, II and III. We here quote five paragraphs from the complaint:
'10. Plaintiff is informed and believes, and therefore alleges that after said bids were opened, the Radio Corporation of America, an unsuccessful bidder, objected by letter dated April 14, 1969, to the Department of Administration to the awarding of the contract to the low bidder, the plaintiff, General Electric Company.
11. Plaintiff is informed and believes and therefore alleges that the defendants after receipt of the April 14 letter, permitted representatives of the Radio Corporation of America to be present at a hearing and to state their contentions concerning the letting of the contract pursuant to the request for bids without giving notice to the plaintiff and without giving the plaintiff an opportunity to be heard.
12. After some period of time, the contract had not been awarded to plaintiff and on or about the 26th day of April, 1969, Mr. Paul H. Fletcher, District Sales Representative of the plaintiff, telephoned the defendant Brickhouse to ascertain the status of the bid. During said telephone call, the defendant Brickhouse informed Mr. Fletcher that a decision had been made to reject all bids and to open the contract for rebidding. Mr. Brickhouse informed Mr. Fletcher that this decision has been 'irrevocably made' even though plaintiff had been given no notice and had no knowledge of the defendant's decision to consider rejecting the bids, and even though plaintiff had not been given opportunity to be heard concerning said decision.
13. Plaintiff requested a hearing in order to have an opportunity to be heard on the matter and when representatives of the plaintiff met with the defendants they were once again told that the decision to reopen the bidding had been 'irrevocably made' and that any hearing would be of no avail.
14. Although plaintiff has received no formal rejection of its bid and reason therefor, plaintiff is informed and believes and therefore alleges, that the sole reason for the 'irrevocable decision' made by defendants to reject plaintiff's low bid and rebid the contract was that the defendants contend that the specifications for a 3 1/8 inch patch panel called for in Item 36 of the specifications, attached hereto as Exhibit A, was in conflict with the specification contained in Item 1.7 of the instructions to bidders, which generally required that all components meet EIA standards.'
The plaintiff alleged the patch panel, in all respects, complied with EIA standards and requested permission to submit documentary proof showing compliance. Mr. Brickhouse refused to hear the proof. The plaintiff further alleged the defendants' new call for bids repeated the same specifications with respect to the patch panel; that this item accounted for only $600 in a transaction involving $655,000.
The plaintiff prayed (a) that the defendants be restrained from accepting any new bids and (b) that a mandatory injunction be issued requiring the defendants to award to the plaintiff the contract according to its offer in response to Bid No. 690462 at the price of $655,000.
The defendants filed answer to the complaint denying the allegations upon the basis of which the plaintiff prayed for the restraining order. In addition, the defendants filed a demurrer to the cause of action alleged, upon these grounds:
1. The defendants, in their official positions as officers of the State, were carrying out the duties which the law required them to perform. This is, therefore, an action against the State of North Carolina which has not waived its sovereign immunity and has not consented to be sued.
2. The court is without authority to exercise the discretionary powers assigned to the defendants, or to require the defendants to execute a contract on behalf of the State.
3. The plaintiff does not allege facts sufficient to show any abuse of discretion on the part of the defendants in rejecting all bids and in readvertising for new submissions.
The defendants, in their official capacities and acting for the State under authority of G.S. § 143--52.1, advertised for bids for the television transmitting equipment specified in No. 690462. The authorizing statute contains this provision: 'Any and all bids received may be rejected.' Form R--1, attached to the bid proposal, contains the following: 'The State reserves the right to reject any and all bids. * * *' The plaintiff concedes the right of the defendants to reject all bids, but contends the right may not be exercised arbitrarily or capriciously, but honestly and for good cause. The reason for rejecting the plaintiff's bid was failure of its 3 1/8 inch patch panel to comply with Electronic Industries Association standards. The plaintiff argues the patch panel meets EIA standards, but the defendants refused to permit the plaintiff to offer documentary proof to substantiate its contention. On the contrary, the defendants, having heard the objection of a competitive bidder, claimed a discrepancy existed with respect to the...
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...Heath, 282 N.C. 292, 192 S.E.2d 308 (1972); Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971); General Elec. Co. v. Turner, 275 N.C. 493, 168 S.E.2d 385 (1969); Nello L. Teer Co. v. Highway Comm., 265 N.C. 1, 143 S.E.2d 247 (1965); Shingleton v. State, 260 N.C. 451, 133 S.E.......
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...has consented or waived its immunity." Harwood v. Johnson , 326 N.C. 231, 238, 388 S.E.2d 439 (1990) (quoting Electric Co. v. Turner , 275 N.C. 493, 168 S.E.2d 385 (1969) ). Sovereign immunity applies to "state agenc[ies] created for the performance of essentially governmental functions" wh......
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