Leaseway Distribution Centers, Inc. v. Department of Administrative Services, s. 88AP-330

• Decision Date: 16 June 1988
• Docket Number: Nos. 88AP-330,88AP-332 and 88AP-370,s. 88AP-330
• Citation: 550 N.E.2d 955,49 Ohio App.3d 99
• Parties: LEASEWAY DISTRIBUTION CENTERS, INC., Appellee, v. DEPARTMENT OF ADMINISTRATIVE SERVICES et al., Appellants. (Three Cases.)
• Court: Ohio Court of Appeals

Page 99

49 Ohio App.3d 99

550 N.E.2d 955

LEASEWAY DISTRIBUTION CENTERS, INC., Appellee, v. DEPARTMENT OF ADMINISTRATIVE SERVICES et al., Appellants. (Three Cases.)

Nos. 88AP-330, 88AP-332 and 88AP-370.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 16, 1988.

Syllabus by the Court

1. Although an agency has broad discretion to grant bids based on rules it has established, the legislature has declared that an agency must award its bid to the "lowest responsive and responsible bidder" as defined in R.C. 9.312.

2. R.C. 9.312 defines a "responsive bidder" as one whose proposal (1) responds to bid specifications in all material respects, and (2) contains no irregularities or deviations from the specifications which would affect the amount of the bid or otherwise give him a competitive advantage.

3. An "offer" is defined as the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

4. An injunction should not be granted when the damage is trifling, fanciful, sentimental, or a mere inconvenience. Particular caution should be exercised in granting injunctions, especially in cases affecting a public interest where the court is asked to interfere with or suspend the operation of important works or control the action of another department of government.

5. Ohio case law does not allow a nunc pro tunc entry to modify an earlier judgment entry. The power to enter a judgment nunc pro tunc is restricted to placing in the record evidence of judicial action which has actually been taken. It can only be exercised to supply an omission in the exercise of functions which are merely clerical. It is not made to show what the court might or should have decided, or intended to decide, but what it actually did decide.

6. A nunc pro tunc entry may be entertained long after a record has been made, correcting the original entry so that it shall conform to the actual order or judgment of the court. The order or judgment must have been, in fact, made and in no case should a correction be added to the record if it is not properly part thereof.

Benesch, Friedlander, Coplan & Aronoff, Joel Mirman, Robert N. Shamansky and Thomas E. Berry, Columbus, for appellee Leaseway Distribution Centers, Inc.

Anthony J. Celebrezze, Jr., Atty. Gen., Thomas L. Rosenberg and Nathan Gordon, Columbus, for appellant Department of Administrative Services.

Smith & Schnacke, William Wilkinson and Julie A. Dunwell, Columbus, for appellant, Lewis & Michael, Inc.

Taft, Stettinius & Hollister, Anne Clifton Berry and David Johnson, Columbus, for appellant, Taylor Distributing, Inc.

McCORMAC, Judge.

Defendants-appellants, Lewis & Michael, Inc., Taylor Distributing, Inc., and the Department of Administrative Services, appeal the trial court's decisions declaring Leaseway Distribution Centers, plaintiff-appellee, the lowest responsive and responsible bidder in a contract bidding and issuing a writ of mandamus and mandatory injunction compelling the Department of Administrative Services to award a contract to Leaseway.

On January 21, 1988, the Department of Administrative Services ("DAS") requested bids for a contract to provide warehouse storage and handling services for the liquor inventory in southwestern Ohio for the Department of Liquor Control ("DLC"). Bids were submitted by Leaseway Distribution Centers, Inc. ("Leaseway"), Lewis & Michael, Inc. ("Lewis & Michael"), Taylor Distributing, Inc. ("Taylor Distributing"), and another company which is not a party to these cases. After reviewing the bids DAS concluded that Leaseway's bid was invalid. Thereafter, DAS announced its intention to award the contract to Lewis & Michael.

Leaseway initiated two lawsuits in response to this action. In one suit, Leaseway sought a declaratory judgment that it submitted a responsive and responsible bid for warehouse facilities and that it be declared the lowest responsive and responsible bidder. Leaseway sought a mandatory injunction requiring the DAS director, DLC, and the DLC director to award the contract for said services to Leaseway and an injunction preventing the contract from being awarded to any other entity.

In a separate action, which was consolidated for trial with the previous lawsuit, Leaseway sought a writ of mandamus requiring DAS, DLC, the director of DAS and the director of DLC to enter into a contract with Leaseway.

The court granted plaintiff's motion for a temporary restraining order prohibiting DAS, the director of DAS, DLC, and the director of DLC from entering into a contract regarding the warehouse facility. The temporary restraining order prevented the parties from taking any further action until the court held a preliminary and permanent injunction hearing.

Lewis & Michael served a counterclaim and a cross-claim requesting that plaintiff's complaint be dismissed and that judgment be granted for it.

The trial court, after a hearing, adjudged that Leaseway was the lowest responsive and responsible bidder and granted a writ of mandamus and a mandatory injunction compelling DAS and the DAS director to award and to execute the contract with Leaseway by noon on April 8, 1988. In the court's judgment entry, it said that findings of fact and conclusions of law were incorporated therein, but it did not say what they were.

On April 8, 1988, the state of Ohio through its defendants-appellants filed a motion for a stay of judgment. The trial court denied this motion for a stay. On the same day, these defendants and defendant-appellant, Lewis & Michael, filed their notices of appeal in the trial court. Taylor Distributing also appealed the trial court's decision at a later time. Each appellant was assigned a different case number, but the cases were subsequently consolidated.

The state's defendants-appellants moved this court for a stay of judgment and, on April 13, 1988, this court granted the motion to stay the trial court's decision.

On April 28, 1988, the trial court issued a nunc pro tunc entry in which it stated that it had adopted the findings of fact and conclusions of law submitted by Leaseway and that these were adopted by reference in its earlier April 7 journal entry.

Appellant Lewis & Michael made a motion for leave to strike the nunc pro tunc entry of the trial court. This court determined that this motion should be determined when it decides the merits of the consolidated cases.

The state of Ohio, through its defendants-appellants, asserts the following assignments of error:

"1. The trial court erred as a matter of law in not applying the appropriate standard of review of a decision made by an administrative agency statutorily charged with the discretion to make such decisions. The standard for review is not for the trial court to simply substitute its judgment for that of the administrative agency but to determine whether the administrative agency specifically authorized to make such discretionary decisions has abused that discretion granted to it. The trial court did not find such an abuse of discretion.

"2. The trial court erred as a matter of law in finding that Appellee Leaseway's bid could form an offer upon which a contract could be made.

"3. The trial court erred as a matter of law in not determining whether the balance of equities and public interest favors for or against the issuance of injunctive relief and even if such a determination was made, the trial court erred in determining them against the State Appellants."

Defendant-appellant, Taylor Distributing, asserts the following assignment of error:

"The trial court erred in ordering the Department of Administrative Services to award the contract to Plaintiff-Appellant because the bid submitted by Plaintiff-Appellant was not responsive to the bid specifications, as is required by § 125.11 and § 9.312 of the Ohio Revised Code."

Defendant-appellant, Lewis & Michael, states the following assignments of error:

"I. The trial court erred in holding that the State defendants abused their discretion and their clear legal duty by disqualifying a bid which gave that bidder a competitive advantage over other bidders, since Ohio law requires that such a bid be disqualified as nonresponsive.

"II. The trial court erred in issuing an injunction and mandamus order to Leaseway when Leaseway has an adequate remedy at law for money damages since it is able to calculate the amount of profit it will lose as a result of not being awarded the contract.

"III. The trial court erred in failing to issue a writ of mandamus in favor of Lewis & Michael, commanding the State defendants to enter into the subject contract with Lewis & Michael."

In January 1988, DAS requested bids to provide administrative accounting, inventory control, warehouse handling, and storage services for DLC in southwestern Ohio. Four bidders responded to the request on an Invitation To Bid ("ITB") form.

A significant component of the bid package for purposes of these cases is the area on the cover page of the bid. On the bottom portion of this page, the bid says, "[i]n compliance with the above invitation and subject to all conditions imposed, the undersigned offers, and agrees, to furnish any and all of the items at the price set * * *." There is a space underneath this for an authorized signature and a printed signature. At the bottom of the page, it says in italics "NO BID WILL BE CONSIDERED IF IT IS NOT SIGNED" and a revised form says "No Bid Will Be Considered For Evaluation And/Or Award Unless Authorized Signatures Provided."

In addition, page A-1 of the bid package says that "the ______ whose address is ______ hereby submits the following proposal for supplying of storage space and service to the State of Ohio, Department of Liquor Control * * *." Page A-3 recites that the people who have signed certify that they have read the ITB and that the facts and statements...