Syllabus
by the Court.
Section
8027, art. 5, c. 102, Comp. Laws Okl. 1909, referring to
boards of education of cities of the first class, and
providing that they shall make no contracts involving an
expenditure of more than $500 for the purpose of erecting any
public buildings or making any improvements except upon
sealed proposals and to the lowest responsible bidder
contemplates that, before advertising for bids, a plan or
plans open to all shall be prepared with specifications, not
of a general character, but so definite and detailed as to
disclose the specific thing to be undertaken.
The
true intent and purpose of the statute (section 8027, supra)
requiring certain contracts to be let only on sealed
proposals to the lowest responsible bidder is to secure
economy and protect the public from collusive contracts
favoritism, or fraud, and to promote actual, honest
effective competition in the construction of public work by
requiring of boards the presentation of a common standard
previously ascertained, to the end that each proposal or bid
received and considered may be in competition with all
others, and to preclude the consideration and acceptance of
proposals or bids on plans and specifications not open alike
to all.
The
requirement of the statute (section 8027, supra) that the
contract shall be let to the lowest responsible bidder
involves a consideration by the board of more than merely
which bid was the lowest in price; it requires the
ascertainment of the ability of bidders to respond in the
discharge of all the obligations assumed in accordance with
what is expected or may be demanded under the terms of
contract.
A
resident taxpayer, although he shows no special private
interest, may invoke the interposition of a court of equity
to prevent an illegal disposition of the money of a
municipality, or the illegal creation of a debt which he in
common with the other property owners may otherwise be
compelled to pay.
Error
from District Court, Comanche County; J. T. Johnson, Judge.
Action
by Fred B. Hannan against the Board of Education of the City
of Lawton and others. Judgment for defendants, and plaintiff
brings error. Reversed and remanded, with directions.
DUNN
J.
The
board of education of the city of Lawton, Okl., being engaged
in the construction of a high school building in that city,
published the following notice: "The board of education
of Lawton, Oklahoma, will receive bids up to 8 o'clock p.
m., April 28th, for the erection of a high school building to
be erected on their property, in accordance with plans and
specifications as furnished for same by Hair & Smith of
Oklahoma City. Each bid must be accompanied by a certificate
of $500.00 to guarantee that contractor will accept the
contract for the amount of his proposal, and further that he
will furnish satisfactory bond for 50 per cent. of the amount
of his contract. Plans may be obtained at the clerk of the
board's office or at architect's by depositing a
$100.00 certified check which will be returned upon the
return of drawings in good condition. They further will
receive bids for the plumbing accompanied by a certified
check for $500.00 subject to conditions as per above. Plans
may be obtained by depositing $10.00 for their safe return.
They will further receive bids accompanied by plans and
specifications in form of proposal for a steam force blast
system of heating and ventilation controlled by automatic
heat regulation in all rooms other than halls and toilets,
board and supt. room, wall radiation. Each pupil in each room
is to receive 1,800 cubic feet of air per hour. All
recitation, board, instructors, assemblies, studies and
domestic rooms are to be guaranteed a heat of 70 degrees in
coldest weather. The halls, toilets, gymnasium and manual
training rooms being heated to 60 degrees in coldest weather.
The plans may be obtained by depositing $10.00 for the safe
return. The proposals shall be accompanied by a certified
check for $2,000.00 subject to conditions as per above."
April 28th, 1909, plans and specifications accompanied by
bids on the heating and ventilating system were submitted by
Lewis & Kitchen, defendants in error, defendants below, and
also by McMahon Company, and by Fred B. Hannan, plaintiff in
error herein, plaintiff below. The bid of the first company
was for $11,340; the McMahon Company's bid, $10,730; and
the bid of plaintiff was $10,500. On considering the said
bids the board of education entered into a contract with the
defendants Lewis & Kitchen, and agreed to pay them for the
construction of the heating and ventilating system the sum of
$11,340, whereupon Fred B. Hannan brought this action of
injunction in the district court of Comanche county, seeking
to enjoin the said defendants Lewis & Kitchen from carrying
out their contract and the board of education from paying any
funds of the district on the same. No other notice was given,
and no other or different plans and specifications on the
heating and ventilating system were adopted or furnished than
the details mentioned in the published notice, and plaintiff
insists that the board was without power to let the contract
thereon as they did not comply with the statute, and a
letting thereon was in violation thereof. The defendants
answered, admitted that there was no other publication or
call for bids except the one given in the said notice, and
that the contract was let to Lewis & Kitchen upon their plans
and specifications with no opportunity given to others
bidders to compete upon the plans and specifications
submitted to them. At the trial of the cause, the parties
entered into the following agreed statement of facts:
"It
is hereby agreed by and between the parties hereto that the
following shall be admitted in evidence as facts and shall
be received without the introduction of evidence to
maintain the same. Other evidence material and competent
and upon other issues in the case may be offered in
evidence by either party. (1) The city of Lawton, state of
Oklahoma, is a municipal corporation, organized and
existing under and by virtue of the laws of the state of
Oklahoma, as a city of the first class and constituting a
separate school district in the county of Comanche, state
of Oklahoma. (2) The defendant board of education of the
city of Lawton, state of Oklahoma, is a corporation, duly
organized and existing under and by virtue of the laws of
the state of Oklahoma, and having direct charge and
supervision of all matters and affairs of said school
district. (3) The defendants Edward C. Lewis and John H.
Kitchen are partners doing business under the firm name and
style of Lewis & Kitchen, and engaged in the business of
engineering and contracting with their principal office
and place of business in Chicago, Ill., and in Kansas City,
state of Missouri. (4) That the plaintiff, Fred B. Hannan,
is a resident taxpayer of the city of Lawton, Oklahoma. (5)
That on the 3d day of November, 1908, at an election duly
and legally held for that purpose, the duly qualified
voters in said school district, authorized issuance of
bonds in the sum of $100,000, for the erection,
construction, and equipment of a high school building. (6)
That pursuant to the authority given at said election, the
defendant board of education of the city of Lawton,
Oklahoma, on the 10th day of April, 1909, caused an
advertisement and notice for bids for the construction of
said school building and for the construction of a plumbing
system for said building, and for the construction and
plans and specifications for a heating and ventilating
system for said building to be made; that said
advertisement was duly and legally made, and for the
required length of time; that Exhibit A attached to the
petition of the plaintiff herein is a full, true, correct,
and complete copy of said notice. (7) That prior to April
28, 1909, the said board had not prepared plans and
specifications for the construction of said heating and
ventilating system, except as to the requirements set forth
in said advertisement, and did not select or adopt any such
plans or specifications until after the same had been filed
with said board by bidders. (8) That there were three
bidders, to wit, Fred B. Hannan, of Lawton, Oklahoma, the
McMahon Company of Kansas City, Mo., and the defendants
Lewis & Kitchen; and the plans and specifications submitted
by each of the three bidders were each different and not
the same. (9) That immediately after the submission and
consideration of the plans and specifications by the
several bidders therefor the said board adopted the plans
and specifications submitted by the defendants Lewis & Kitchen, and entered into a contract in accordance
therewith. (10) That each bidder complied with the rules as
to security and the deposit of certified checks required by
the board. (11) That the amount bid by Fred B. Hannan for
the construction of the heating and ventilating system,
upon the plans and specifications submitted by him, was
$10,500.00. (12) That the amount bid by the McMahon
Company, upon the plans and specifications submitted by
them was $10,730.00. (13) That the amount bid by Lewis & Kitchen, upon the plans and specifications submitted by
them, was $11,340.00; that no other advertisement, other
than the one set out in Exhibit A, herein referred to, was
ever made for the construction of a heating and ventilating
system. Complete plans and specifications for the
construction of the main building, not including plans and
specifications for the
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