Kenneth E. Curran, Inc. v. Auclair Transp., Inc., s. 80-268

• Decision Date: 10 June 1981
• Docket Number: Nos. 80-268,80-344,s. 80-268
• Parties: , 1981-2 Trade Cases P 64,213 KENNETH E. CURRAN, INC. v. AUCLAIR TRANSPORTATION, INC. et al.
• Court: New Hampshire Supreme Court

Page 124

431 A.2d 124

121 N.H. 451, 1981-2 Trade Cases P 64,213

KENNETH E. CURRAN, INC. v. AUCLAIR TRANSPORTATION, INC. et al.

Nos. 80-268, 80-344.

Supreme Court of New Hampshire.

June 10, 1981.

Alexander J. Kalinski, of Manchester, and Cleveland, Waters & Bass, of Concord (Alexander J. Kalinski, Manchester, on the brief and Robert T. Clark, Concord, orally), for plaintiff.

Sheehan, Phinney, Bass & Green, of Manchester (Bradford E. Cook, orally and on the brief and Susan L. Antone, Manchester, on the brief), for defendants Auclair Transportation, Inc., and Granite State Distributors, Inc. Gregory H. Smith, Atty. Gen. (James E. Townsend, Asst. Atty. Gen., and Michael D. Ruedig, Concord, attorney, on the brief and orally), for defendants Jean R. Wallin, Costas S. Tentas and Lyle R. Hersom, as Chairman and Comm's of the New Hampshire State Liquor Commission.

BROCK, Justice.

This is a bill in equity in which the plaintiff, Kenneth E. Curran, Inc., seeks to enjoin the State Liquor Commission from rejecting all bids submitted in response to a solicitation of bids for a public contract to transport liquor for the State and from readvertising the contract. In a related action, the plaintiff brought suit against Auclair Transportation, Inc. and Granite State Distributors, Inc., alleging a violation of this State's antitrust laws, RSA ch. 356 (Supp.1979). The Superior Court (Batchelder, J.) dismissed the plaintiff's petition for injunctive relief against the State but refused to dismiss the antitrust actions against Auclair and Granite State. Both decisions were appealed to this court, and we affirm in each case.

On February 15, 1980, the liquor commission mailed to a number of transportation companies a formal solicitation of bids for a public contract to transport liquor and supplies to its liquor stores located throughout the State. The solicitation included a cover letter, an attachment setting forth the terms of the proposed contract and a list of required information to be submitted by the bidders. While the cover letter itself contained only a few general guidelines concerning the bidding procedure, it did state that "(t)he State reserves the right to waive any informality in or to reject any and all bids. Failure to furnish all information as requested may disqualify bid." Notwithstanding this warning, four of the five bids actually received were incomplete, including the plaintiff's.

The companies submitting bids were R.F. Zapora Transportation, Buckley's Egg Express, Inc., the two defendant companies, Auclair and Granite State, and the plaintiff. On March 3, 1980, in the presence of representatives from each of the five companies, the bids were opened. Almost immediately, the legal squabbling giving rise to this case commenced.

By letter dated the next day, March 4, 1980, the plaintiff's attorney invited the attention of the commission's chairman to numerous irregularities in the bids submitted by the other companies. A number of complaints were made by the plaintiff in that letter which ranged from pointing out that Granite State and Auclair were controlled by the same person to a complaint that some bidders expressed their cost estimates in dollars and cents per hundred pounds rather than cents per hundred pounds as requested in the bid documents. This letter spawned numerous other correspondence among attorneys for the bidders, the commission and, finally, the attorney general's office, which recommended that all the bids be rejected and that the contract be readvertised. Following this advice, the commission readvertised the contract and the plaintiff filed its petition seeking to enjoin the commission from doing so.

In Gerard Construction Co. v. City of Manchester, 120 N.H. 391, 398, 415 A.2d 1137, 1141 (1980), we implicitly recognized that public officials have broad discretion in deciding whether to reject all bids made on a public contract. See also 72 C.J.S. Supp. Public Contracts § 15, at 193 (1975). However, should public officials decide to accept any of the bids received on the proposed contract, their broad discretion to reject bids yields to the more ministerial function of determining the "lowest responsible bidder" who has complied with the terms of the solicitation. See Gerard Construction Co. v. City of Manchester, supra, 120 N.H. at 398, 415 A.2d at 1141; 72 C.J.S. Supp. Public Contracts § 16 (1975). Absent an allegation of fraud, corruption or...