George A. Fuller Co. v. Elderkin

• Decision Date: 30 April 1931
• Docket Number: 18,19.
• Citation: 154 A. 548,160 Md. 660
• Parties: GEORGE A. FULLER CO. v. ELDERKIN ET AL. [a1] BROENING ET AL. v. ELDERKIN ET AL.
• Court: Maryland Court of Appeals

154 A. 548

160 Md. 660

GEORGE A. FULLER CO. v. ELDERKIN ET AL. ^[a1]

BROENING ET AL. v. ELDERKIN ET AL. ^[a1]

Nos. 18, 19.

Court of Appeals of Maryland

April 30, 1931

Appeals from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Separate bills by Clarence E. Elderkin and another against the George A. Fuller Company, and against William F. Broening and others. Decree for plaintiffs in each case. and defendants appeal; the appeals being submitted and argued together.

Reversed and bill dismissed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Edward E. Hargest, Jr., of Baltimore (O. Bowie Duckett, Jr., and John Philip Hill, both of Baltimore, on the brief), for appellant George A. Fuller Co.

Allen A. Davis, Asst. City Sol., of Baltimore (A. Walter Kraus, City Sol., of Baltimore, on the brief), for the appellants Broening and others.

Philip B. Perlman, of Baltimore (Mullikin, Stockbridge & Waters, of Baltimore, on the brief), for the appellees.

ADKINS J.

These appeals grew out of a contract awarded to the appellant, George A. Fuller Company, by the board of awards of Baltimore city to erect a building for the Enoch Pratt Free Library. The appeal in No. 18 was by the said company and in No. 19 by the mayor, and others comprising the board of awards, the mayor and city council of Baltimore, and several heads of city departments. The appeals are from a decree of circuit court No. 2 of Baltimore city (1) making perpetual the injunction theretofore granted restraining the defendants in No. 18 from executing a contract with the George A. Fuller Company for the construction of the Enoch Pratt Free Library building, and from performing any duties in connection with said contract, and from paying out any moneys of the taxpayers of the city of Baltimore in connection therewith; (2) declaring the action of the board of awards in attempting to award said contract to said company null and void, "for the reason that the bid of the George A. Fuller Company was not in compliance with the proposal and specifications" for the construction of said building; (3) restraining said company from taking any action in furtherance of said award; (4) requiring the individuals constituting the board of awards "to give further consideration to the bids received on December 17th, 1930, for the construction of the Enoch Pratt Free Library building, and to award the contract for the construction of said building to the lowest responsible bidder who complied with the proposal and specifications."

The bill of complaint was filed by Clarence E. Elderkin, as a taxpayer, and Consolidated Engineering Company, as a taxpayer and as one of the bidders. In the bill it was alleged that in the specifications it was specifically provided that bids should be submitted on the entire contract, and that, under the caption "Instruction to Bidders," it was provided that all information called for by the proposal form must be given and all spaces filled in and all alternates and unit prices bid upon; that in the proposal form furnished all prospective bidders "bids or proposals were required to be made on seven different sets of alternates, so that the Board of Awards in exercising the discretion vested in it by Section 15 of the Baltimore City Charter, could modify or change the original or base specifications by adding thereto alternates, described as such in the specifications and in the proposal form"; that there were twelve bidders, including the plaintiff and defendant companies; that the building engineer of Baltimore city, with the approval of the chief engineer, recommended that the contract be awarded to the George A. Fuller Company on its base bid of $2,044,000, together with certain alternates, which reduced its net bid to $2,003,000; that the Consolidated Engineering Company's base bid was $2,046,000 or $2,000.00 more than the base bid of the Fuller Company; that on the selected alternates the Engineering Company's bid was reduced to $2,017,000; that all the other bids were greater in amount; that the plaintiffs protested against the award to the defendant company because an examination of its bid showed that it was defective for the following reasons: (1) In alternate No. 4 requiring bids on two heating control systems designated as (a) and (b), being respectively the Webster master control and orifice system and Dunham differential system, it named additional sums of $3,500 and $6,000 respectively to be added to the base bid, but failed to give as to each the saving in steam consumption in per cent. as required; (2) in alternate No. 5, relating to the air-cooling system, if failed to bid on two of five different alternates, viz. (a) and (c); that among the alternates included in the recommended award were 4 (a) and 5 (b), but at a subsequent meeting of the board of awards the building engineer, with the approval of the chief engineer, made a new recommendation, viz. that alternate No. 5 (e) be accepted in lieu of alternate No. 5 (b), which further reduced the amount of the net bid of the Fuller Company by the sum of $5,000; that, after reading and considering the opinion of the city solicitor as to the effect of the omissions in the bid of the Fuller Company, the board of awards accepted the recommendation of the building engineer, and attempted to award the contract to the Fuller Company, the plaintiffs again protesting; that the action of the board of awards deprives the taxpayers of Baltimore of the benefit of the guaranties specifically required by the specifications and proposals as to alternate No. 4 (a); that, in the absence in the bid of the Fuller Company of any guaranty in saving of steam consumption, it was impossible for the board of awards to decide that the Fuller Company was the low bidder on the contract for which bids had been asked; that the failure of the Fuller Company to bid on alternates 5 (a) and 5 (c) constituted a serious and material departure from the requirements of the specifications and proposal forms, and deprived the city of Baltimore of competition on these two alternates; that, because of its failure to guarantee any saving in steam consumption, the Fuller Company was not the lowest bidder on the contract, but that the lowest bidder was the Consolidated Engineering Company; that, in any event, the bid of the Fuller Company did not meet the requirements of the specifications, and that the defects in its bid are material and substantial, and of such character as are beyond the power of the board of awards to ignore, disregard, or waive; that the plaintiff company complied fully and completely with all of the requirements of law, the advertisements and notices, the specifications and proposals, and is entitled to the award of the contract. Answers were duly filed and testimony taken, whereupon the above-mentioned decree was passed. There are three questions raised by these appeals:

1) Were there such defects in the bid of the Fuller Company, as to put it beyond the power of the board of awards to award it the contract if in the exercise of a reasonable discretion the board determined that the Fuller Company was the lowest bidder?

(2) Did the failure of the Fuller Company to guarantee a saving of steam in its bid on alternate 4 (a) make it impossible for the board, in the exercise of a reasonable discretion, to find that said company was the lowest bidder?

(3) Did the chancellor have authority by mandatory injunction to require the board of awards to further consider the bids received by it and award the contract to the lowest responsible bidder which complied with the proposals and specifications?

1. It is not every failure in bidding to comply with specifications that will make an award illegal. "Variations from specifications must be substantial so as to give the bidder special advantage, to invalidate the contract." McQuillan on Municipal Corporations (2d Ed.) vol. III, § 1321. See, also, 44 C.J. p. 11; Abbott on Municipal Corporations p. 263.

In Maryland Pavement Co. v. Mahool, 110 Md. 397, 407 72 A. 833, 834, 17 Ann. Cas. 649, it was said: "Slight irregularities in a bid not affecting its substantial characteristics may be disregarded." In that case it was held that even such irregularities furnish ground for the rejection of a bid if the city elects to take advantage of them, but the clear inference is that they do not affect the legality and award. The statement that, "where reasonable requirements have been prescribed as to the manner of bidding, such requirements must be complied with, in order that a bid shall be entitled to consideration," clearly meant that compliance was necessary to enable the bidder to compel acceptance of his bid. The bidder there was the plaintiff in a mandamus proceeding, and the irregularity was in fact a material departure from the specifications, and the...