Hardrives Paving & Constr., Inc. v. Niles, 93-T-4910

• Citation: 650 N.E.2d 482,99 Ohio App.3d 243
• Decision Date: 14 November 1994
• Docket Number: No. 93-T-4910,93-T-4910
• Parties: HARDRIVES PAVING AND CONSTRUCTION, INC., Appellant, v. CITY OF NILES, Appellee. *
• Court: Ohio Court of Appeals

Page 243

99 Ohio App.3d 243

650 N.E.2d 482

HARDRIVES PAVING AND CONSTRUCTION, INC., Appellant, v. CITY OF NILES, Appellee. ^*

No. 93-T-4910.

Court of Appeals of Ohio Eleventh District, Trumbull County.

Decided Nov. 14, 1994.

William M. Roux, Warren, for appellant.

J.T. Dull, Niles, for appellee.

FORD, Presiding Judge.

This case comes from the Trumbull County Court of Common Pleas.

In April 1993, appellee, the city of Niles, solicited bids for the "1993 City Resurfacing Program," a road repaving project. Appellee received three bids on the project. Unit prices were itemized by each of the competitive bidders as required by the bid specifications. Appellant, Hardrives Paving and Construction, Inc., submitted the lowest total bid at $225,588.40, followed by Gennaro Pavers, Inc. ("Gennaro") at $225,592.30, and the City Asphalt & Paving Co. ("City Asphalt") at $261,609.41.

Despite the fact that appellant underbid Gennaro by $3.90, Mark Hess, the Engineering and Development Coordinator, recommended that the contract be awarded to Gennaro. In a letter, Hess expressed his rationale as follows:

"Although the low bidder is Hardrives Paving at $225,588.40 and Gennaro Pavers is second at $225,592.30, I am recommending the award be made to Gennaro Pavers Inc. for the following reasons:

"1. $245,000.00 is available for resurfacing which will mean extending the contract to include $20,000.00 of additional paving. The highest cost item in this extension will be asphalt concrete which is $49.40/CY in Hardrives bid and $48.00/CY in Gennaro Pavers bid.

"2. Gennaro's equipment is currently in town and he is ready to start upon notification.

"Please be aware that this recommendation is based on cost projections only and is not a reflection on Hardrives Paving. They have performed quality work in the past for the City and if your decision is to award Hardrives Paving this contract, I am confident they would perform effectively." (Emphasis added.)

With the remaining funding, appellee intended to add Niles-Vienna Road and Near Street to the repaving project. Neither road appeared in the bid specifications.

Appellant filed a complaint seeking a writ of mandamus, injunction and declaratory judgment. Additionally, at trial, the court permitted appellant to present testimony for lost profits if it were not awarded the job under any of the previously mentioned avenues.

The trial court ruled against appellant, concluding that the decision to award the contract to Gennaro was not an abuse of discretion.

Appellant ¹ appeals, assigning the following as error:

"1. The Trial Court erred to the prejudice of Plaintiff-Appellant by denying Plaintiff-Appellant's request for Writ of Mandamus and/or Declaratory Judgment when it found that no abuse of discretion existed on the part of Defendant-Appellee where Defendant-Appellee failed to comply with competitive bidding requirements pursuant to Ohio law as to 'lowest and best,' materially changed the bid specifications after opening the bids, and further awarded the public contract to the second lowest bidder, Gennaro Pavers, based on the changes in the bid specifications.

"2. The Trial Court erred in refusing to award damages to Plaintiff-Appellant where an abuse of discretion was shown and where Plaintiff-Appellant presented evidence as to lost profits, which evidence was not rebutted by Defendant-Appellee."

R.C. 735.05 governs the present situation. It states:

"The director of public service may make any contract, purchase supplies or material, or provide labor for any work under the supervision of the department of public service involving not more than ten thousand dollars. When an expenditure within the department, other than the compensation of persons employed therein, exceeds ten thousand dollars, such expenditure shall first be authorized and directed by ordinance of the city legislative authority. When so authorized and directed, except where the contract is for equipment, services, materials, or supplies to be purchased under division (D) of section 713.23, or section 125.04 or 5513.01 of the Revised Code or available from a qualified nonprofit agency pursuant to sections 4115.31 to 4115.35 of the Revised Code, the director shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city." (Emphasis added.)

In Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 552 N.E.2d 202, the court noted that the statute does not require a contract to be awarded to the lowest bidder because factors other than price may be considered in determining the "lowest and best" bidder. Id. at 21, 552 N.E.2d at 204-205. Moreover, the statute empowers the decisionmakers with discretion in determining the lowest and best bidder and a court should not intervene absent a showing of an abuse of discretion. Id., at 21-22, 552 N.E.2d at 204-205.

In appellant's first assignment of error, it contends that the court should have granted a writ of mandamus or declaratory judgment in its favor.

First, appellant maintains that it was entitled to a writ of mandamus. For a writ of mandamus to issue, appellant was required to establish that it had a clear legal right to the relief prayed for, that appellee was under a clear legal duty to perform the acts and that appellant had no plain and adequate remedy in the ordinary course of the law. See State ex rel. Weger v. Hague (May 27, 1994), Ashtabula App. No. 93-A-1840, unreported, at 2, 1994 WL 237984.

As previously stated, appellee has discretion in determining the lowest and best bidder. "[A] statute which confers upon a board of public officers authority to make a contract 'with the lowest and best bidder,' confers upon the board a discretion with respect to the contract which can not be controlled by mandamus." State ex rel. Walton v. Hermann (1900), 63 Ohio St. 440, 59 N.E. 104, syllabus. See, also, Cedar Bay 50 Ohio St.3d at 22, 552 N.E.2d at 205. Thus, mandamus is not available, and this argument is meritless.

Next, appellant contends that he was entitled to declaratory judgment. "It is well-settled that three elements are necessary to obtain a declaratory judgment: (1) a real controversy between parties, (2) a controversy which is justiciable in character, and (3) a situation where speedy relief is necessary to preserve the rights of the parties." Buckeye Quality Care Centers, Inc. v. Fletcher (1988), 48 Ohio App.3d. 150, 154, 548 N.E.2d 973, 976. All of these elements are fulfilled in the present case. Furthermore, appellant is seeking to have its...