Irwin R. Evens & Son, Inc. v. Board of Indianapolis Airport Authority

• Decision Date: 15 January 1992
• Docket Number: No. 49A04-9009-CV-408,49A04-9009-CV-408
• Citation: 584 N.E.2d 576
• Parties: IRWIN R. EVENS & SON, INC. and Cincinnati Time, Inc., Appellants (Plaintiffs Below), v. BOARD OF the INDIANAPOLIS AIRPORT AUTHORITY and Indianapolis Electric Company, Inc., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 576

584 N.E.2d 576

IRWIN R. EVENS & SON, INC. and Cincinnati Time, Inc. Appellants (Plaintiffs Below), v. BOARD OF the INDIANAPOLIS AIRPORT AUTHORITY and Indianapolis Electric Company, Inc., Appellees (Defendants Below).

No. 49A04-9009-CV-408.

Court of Appeals of Indiana Fourth District.

Jan. 15, 1992.

Michael C. Cook, Julie L. Michaelis, Wooden McLaughlin & Sterner, Indianapolis, for appellants.

David Konnersman, Lewis Bowman St. Clair & Wagner, Indianapolis, for appellee Indianapolis Elec. Co.

Rex N. Joseph, Jr., Indianapolis, for appellee Bd. of Indianapolis Airport Authority.

MILLER, Judge.

Cincinnati Time, Inc., a disgruntled, losing bidder on a parking lot control system at the Indianapolis International Airport, joined with its in-state distributor, Irwin R. Evens & Son, Inc., a non-bidder acting as a taxpayer, seeking a preliminary and a permanent injunction to prevent winning bidder Indianapolis Electric Company (Electric) from performing the contract. Time and Evens (collectively Time) claimed that the Board of the Indianapolis Airport Authority (Airport) abused its discretion by awarding the contract in violation of statutory public bidding procedures.

After conducting discovery, Time filed a Motion for Partial Summary Judgment requesting the trial court to declare the contract between Airport and Electric void on the ground that Electric's bid was not responsive to Airport's specifications. Instead, the trial court entered final summary judgment in favor of Electric and Airport--denying Time's request for an injunction.

After Time's appeal was perfected, Airport and Electric notified this court that the contract had been fully performed and moved to dismiss the appeal alleging the matter was moot. Time contends that the fact that the contract has been fully performed does not render the issue moot because the integrity of the public bidding process is a matter of public importance which deserves a hearing on the merits.

We affirm the trial court because--even if the matter is not moot as to taxpayer Evens--Time failed to demonstrate that Electric's bid was not responsive to the specifications in such a substantial or material way as to warrant rejection.

FACTS

We have summarized the facts as found in the trial court's findings 1-15 ¹ (based on the stipulations of the parties) as follows:

On August 14, 1989, Airport advertised for bids for a parking lot revenue control system. Airport retained independent engineering firm Donohue & Associates, Inc., (Donohue) to provide an estimate of the project's cost and to evaluate the bids. Donohue estimated the cost at $141,000. Time, Electric and Federal APD submitted bids for the project which were opened and read on September 29, 1989. Time's bid was $135,495; Electric's bid was $285,000; and APD's bid was $329,245. The Airport rejected all bids and readvertised for bids on November 1, 1989. On November 15, 1989, Donohue reviewed the project specifications and revised its estimate to $191,000. On November 17, 1989, the bids were opened. Time's bid was $123,895; Electric's bid was $204,347; and Federal APD's bid was $231,549.

On December 11, 1989, Donohue recommended that the Board accept the bid of Electric even though Time was the apparent low bidder. Donohue sent a letter to Jan Goldstein, Director of Parking for the Airport, to explain its reasons for preferring the Electric bid and rejecting the Time bid, including the following reasons:

1. Time used a magnetic stripe reader which required a higher level of maintenance than the punch hole reader required by the bidding documents;

2. Time ticket stock was more costly and would result in added yearly costs for the system;

3. Time system required manual clock adjustment at the start of the month instead of the long-term automatically programmable clock required by the Airport;

4. Time system was new and there was no long-term proven record of performance for their software package.

5. The specifications required the system to be installed within ninety days of the award of the contract. Time required 180 days to complete the installation.

Airport accepted Electric's bid, making a record of its reasons for rejecting Time's bid in a memorandum as required by IC 36-1-12-4(9). The contract was awarded to Electric on December 15, 1989.

On January 22, 1990, Time filed its complaint alleging that Airport abused its discretion and acted contrary to law in awarding the bid to Electric. Time argued that Electric's bid was non-responsive in that it did not meet the supplemental qualifications required for bidders and it failed to provide material information required by the specifications.

After discovery, Time filed a motion for partial summary judgment, the parties made written stipulations and a hearing was held on March 28, 1990. Afterward the court entered findings of fact, denied Time's motion for partial summary judgment, and entered summary judgment in favor of Airport and Electric. The pertinent findings of fact follow:

"16. The specifications for the Project called for a parking system utilizing a punch hole encoded ticket.

17. The bid of Time was for a magnetic tape system, not a punch hole encoded system.

18. The bid of Electric was for a punch hole encoded system.

19. The Project's bid specifications prohibit sub-contracting more than Fifty Per Cent (50%) of the work on the Project.

20. That the bid specification further provided that any bidder in doubt as to the meaning of the specifications could seek clarification. Paragraph 10 of the Instructions to Bidders provided:

'If a Bidder finds discrepancies in or omissions from the Contract Documents, or if he is in doubt as to their meaning, he shall at once notify the Owner [Airport] in writing. Such notification must be made at least seven (7) consecutive calendar days prior to the bid date. Neither the Owner, Engineer or Designer will accept telephone calls regarding questions about the Contract Documents. All inquires must be in writing. All interpretations of the Contract Documents will be issued by addenda to all bidders. All addenda issued shall be acknowledged on the forms and will become a part of the Contract. [Airport] will not be responsible for any other explanation of interpretation of the Contract Documents.' [Emphasis in original]

21. [Airport] Board minutes indicate that clarification was requested regarding the vehicle loop detectors and shuttle bus entries and exits, but none was sought regarding the limitation on sub-contracting. [Airport] and Electric interpreted such specification in the same manner. The record does not disclose that Time sought any clarification, or was prejudiced as a result."

22. That from 1945 until 1987, Evens was the distributor for [Time] and its predecessors in interest. From 1987 until the time of the hearing, Evens purchased equipment from [Time] and acted as a service representative for [Time] on an individual contract basis. At the time of the hearing Evens and [Time] were in the process of negotiating a distributorship agreement.

Based upon the foregoing Findings of Fact, the Court now makes the following Conclusions of Law:

CONCLUSIONS OF LAW

"1. The Court has jurisdiction over the parties, the subject matter of this action.

2. That the law is with the Defendants [Airport and Electric] and against the Plaintiffs [Time and Evens] herein.

3. That because the Plaintiff Cincinnati Time, Inc. did not bid a system utilizing a punch hole encoded system, it was not a responsive bidder under I.C. 36-1-12-1.

4. That to the extent that bid specifications prohibiting sub-contracting more than Fifty Per Cent (50%) of the work on the project were ambiguous as to whether they prohibited the contractor from purchasing materials for the project in excess of Fifty Per Cent (50%) of the bid amount, the mechanism provided by the bid specifications which allowed a bidder to seek clarification regarding any uncertainty as to the meaning of the bid specifications cured such ambiguity.

5. That the Board of the Indianapolis Airport Authority is vested with broad discretion in determining that a bidder is responsible and the Court will not substitute its judgment for that of the Board in the absence of clear abuse of such discretion.

6. That the information submitted by [Electric] with its bid was adequate to allow [Airport], in the exercise of its discretion, to find that [Electric] was a responsible Bidder.

7. That the bid of [Electric] is in substantial compliance with the bid requirements.

8. That there is no material question of fact and [Airport and Electric] are entitled to judgment as a matter of law.

R. 131-136.

I. Is the issue moot?

Electric and Airport contend the case should be dismissed as moot because an injunction cannot operate to enjoin the performance of a contract which has been fully performed. Miller v. Kankakee & Pine Creek Drainage Ass'n. (1953), 232 Ind. 412, 112 N.E.2d 852. ² Time argues that our supreme court has held that in matters involving great public interest or affecting the public generally, an appeal should not be dismissed even if a moot question is presented. ³ Matter of Lawrance (1991), Ind., 579 N.E.2d 32, (issue was whether the parents could authorize the withdrawal of artificially provided nutrition and hydration from their daughter, (who died during the appeal) a patient who was in a persistent vegetative state and who had never been competent to express her desires); Ind. Educ. Employment v. Mill Creek Classroom Teachers (1983), Ind., 456 N.E.2d 709, (involved negotiation of teacher contracts which is a matter of great public interest and occurs year after year); State v. Morgan Superior Court (1967), 249 Ind. 220, 231 N.E.2d 516 (the use of National Guard in the event of riots during a city election).

An appeal is moot--and this court lacks jurisdiction--when no effective relief can be rendered to the parties before the court. Lawrance, supra....