Harry Pepper & Associates, Inc. v. City of Cape Coral

• Decision Date: 09 November 1977
• Docket Number: No. 76-1708,76-1708
• Citation: 352 So.2d 1190
• Court: Florida District Court of Appeals
• Parties: HARRY PEPPER & ASSOCIATES, INC., et al., Appellants, v. The CITY OF CAPE CORAL, Florida, et al., and Gulf Contracting, Inc., a Florida Corporation, Appellees.

Page 1190

352 So.2d 1190

HARRY PEPPER & ASSOCIATES, INC., et al., Appellants, v. The CITY OF CAPE CORAL, Florida, et al., and Gulf Contracting, Inc., a Florida Corporation, Appellees.

No. 76-1708.

District Court of Appeal of Florida, Second District.

Nov. 9, 1977.

Rehearings Denied Dec. 16, 1977 and Jan. 5, 1978.

Philip T. Weinstein of Cunningham & Weinstein, Miami, and Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.

Richard V. S. Roosa of Pavese, Shields, Garner, Haverfield & Kluttz, Cape Coral, for appellees City and individual council members.

Daryl J. Brown of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellee Gulf Contracting, Inc.

PER CURIAM.

The issue in this case is whether a city has legal authority to accept a bid which, at the time of its submission, is facially nonconforming as to acceptable materials and components, but which is subsequently amended, prior to acceptance, to conform to the specifications as stated in the original proposal. The trial court, in essence, held that it had such authority. We disagree and reverse.

Appellee City desired to build a water treatment plant, and in March 1976 caused to be published the necessary advertisement for bids. ¹ The advertisement for bids contained the following provision:

Prebid submitted by manufacturers whose equipment has not been specified is required. The Engineer's written approval of that equipment must be obtained for that equipment to be authorized for inclusion in the Bid Documents' Equipment Schedule or project work.

The instructions to bidders contained, inter alia, the following condition:

1) The Contract will be awarded to the lowest responsible bidder complying with the conditions of the Advertisement, Instructions to Bidders, General and Special Conditions, Drawings and Specifications provided such bid is reasonable and provided it is to the interest of the Owner to accept it.

Since a major component of the water plant required the use of expensive and powerful pumps, the specifications for the bids said the following about the various types of pumps to be used:

As a point of information, this project has been designated based on the use of (pumps) . . . as manufactured by Johnson Pump Company; FMC Corporation, Peerless Pump Division; or equal.

Each bid required the bidder to specify the manufacturer of the pumps that he proposed to supply under his bid. ²

After receipt of the bids, it was determined that the lowest bidder was appellee Gulf Contracting (Gulf), and the next lowest bidder was appellant Pepper & Associates (Pepper). However, Gulf's bid listed a brand of pumps, Aurora, which all parties agree would not be acceptable to the City. After the discovery of this nonconformity Smallwood, an engineer in the engineering firm retained by the City, contacted an officer of Gulf and asked him to write a letter amending Gulf's bid so it would conform to the bid specifications. A short time later Gulf submitted a letter saying that it would comply with the bid specifications as to the pumps. Smallwood then recommended that Gulf's bid be accepted.

At a city council meeting on May 28, 1976, appellant Pepper's representatives appeared before the city council and contended that the proposed award on Gulf's amended bid was unlawful. The city council then directed the city attorney to report to it on June 3 as to its legal rights with respect to this matter.

At the meeting on June 3, the City, acting on the recommendation of its project engineer and the advice of its attorney, accepted the lower bid of Gulf.

Appellant Pepper then filed a complaint for a temporary injunction to prevent the City from contracting with Gulf. Following a hearing the trial court denied the request for temporary injunction.

Thereafter Pepper filed an amended complaint for injunction, writ of prohibition, and other relief. A hearing was held on the matter. At the close of Pepper's evidence the City moved for a directed verdict. The trial court granted this motion and thereby denied the injunction. The court then entered its final judgment denying all relief to Pepper, from which this appeal was taken.

The purpose of the bidding process, as asserted in the early landmark case of Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (1931), is:

(T)o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various forms; to secure the best values for the county at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the county, by affording an opportunity for an exact comparison of bids.

See also, 26 Fla.Jur., Public Works and Contracts, Section 14 (1959).

From the above quote it is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. 10 E. McQuillin, Municipal Corporations, Section 29.68 (Rev.Ed.1966); 64 Am.Jur.2d, Public Works and Contracts, Section 59 (1972); Annot., 65 A.L.R. 835 (1930).

Looking to the specific facts in this case it is clear that prior to the awarding of the contract on June 3 the City was aware of the nonconforming nature of Gulf's bid. The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by the other bidders. 64 Am.Jur.2d, Public Works and Contracts, Section 59 (1972). Here, there is no doubt that the difference between the...