MECCON INC. v. Univ. of AKRON, No. 2009-0950.

CourtUnited States State Supreme Court of Ohio
Citation933 N.E.2d 231,126 Ohio St.3d 231,2010 Ohio 3297
Docket NumberNo. 2009-0950.
PartiesMECCON, INC. et al., Appellees, v. UNIVERSITY OF AKRON, Appellant.
Decision Date21 July 2010

126 Ohio St.3d 231
933 N.E.2d 231
2010 Ohio 3297

MECCON, INC. et al., Appellees,
v.
UNIVERSITY OF AKRON, Appellant.

No. 2009-0950.

Supreme Court of Ohio.

Submitted Jan. 26, 2010.
Decided July 21, 2010.


933 N.E.2d 231
126 Ohio St.3d 231

Syllabus of the Court

When a rejected bidder establishes that a public authority violated state competitive-bidding laws in awarding a public-improvement contract, that bidder may recover reasonable bid-preparation costs as damages if that bidder promptly sought, but was denied, injunctive relief and it is later determined that the bidder was wrongfully rejected and injunctive relief is no longer available.

Thompson Hine, L.L.P., Peter D. Welin, and Andrew R. Fredelake, Columbus, OH, for appellees.

933 N.E.2d 232

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Emily S. Schlesinger, Deputy Solicitor, and William C. Becker and Lisa J. Conomy, Assistant Attorneys General, for appellant.

Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K. Schaltenbrand, Cleveland, OH, and Stephen J. Smith; and John Gotherman, Columbus, OH, urging reversal for amici curiae, Ohio Municipal League, County Commissioner Association of Ohio, and Ohio Township Association.

CUPP, J.

{¶ 1} The question before us is whether bid-preparation costs may be recovered as damages by a bidder who establishes that its bid on a public-improvement project was wrongfully rejected because the public authority awarding that contract failed to comply with state competitive-bidding laws. We conclude that reasonable bid-preparation costs may be recovered if the rejected bidder promptly sought but was denied a timely injunction to suspend the public-improvement project pending resolution of the dispute and a court later determines that the bidder was wrongfully rejected by the public authority but injunctive relief is no longer available because the project has already been started or is completed under a contract awarded to another bidder. Therefore, we affirm the judgment of the court of appeals and remand the matter for further proceedings before the Court of Claims.

{¶ 2} According to the complaint of Meccon, Inc., and Ronal Bassak, appellees (“Meccon”), the University of Akron proposed to award plumbing, fire-protection, and heating, ventilation, and air-conditioning (“HVAC”) contracts for public-improvement work in its football stadium. Meccon submitted a bid for the

126 Ohio St.3d 232

separate HVAC project, as did other contractors. Another contractor, S.A. Comunale, submitted four bids: one for each of the stand-alone fire-protection, plumbing, and HVAC contracts and a combined bid to perform all three contracts.

{¶ 3} When the bids were opened, S.A. Comunale's combined bid was the lowest of the combination bids submitted. S.A. Comunale's bid was $1.2 million less than the next-lowest combination of bids. S.A. Comunale was also the low bidder for each of the stand-alone fire-protection, plumbing, and HVAC contracts. Meccon submitted the second-lowest bid for the HVAC work.

{¶ 4} Thereafter, S.A. Comunale withdrew its combined bid and its stand-alone plumbing bid. The university awarded the stand-alone fire-protection and HVAC contracts to S.A. Comunale. After the university rebid the stand-alone plumbing contract and S.A. Comunale was once again the low bidder, S.A. Comunale also won that contract.

{¶ 5} Meccon alleges that the university's award to S.A. Comunale of the three stand-alone contracts, after S.A. Comunale had withdrawn both its combined bid and its plumbing bid, was in violation of the university's own “Instructions to Bidders” documents and comparable provisions within Ohio statutes. Meccon filed suit in the Court of Claims, seeking a temporary restraining order, a declaratory judgment, preliminary and permanent injunctive relief, damages for its bid-preparation costs, and any other appropriate legal and equitable relief resulting from the university's failure to award the HVAC contract to Meccon.

{¶ 6} In response, the university filed a motion to dismiss for lack of subject-matter

933 N.E.2d 233

jurisdiction. It argued that disappointed bidders were entitled only to injunctive relief and that Meccon's claim for bid-preparation costs and other money damages was not cognizable. The Court of Claims granted the university's motion, concluding that only the court of common pleas had jurisdiction because Meccon's remaining claim was only for equitable relief. On the same basis, the Court of Claims also denied the motion for a temporary restraining order, denied all other motions as moot, and dismissed the complaint.

{¶ 7} Meccon appealed to the Tenth District Court of Appeals, and the court reversed the Court of Claims with respect to the jurisdiction question. 182 Ohio App.3d 85, 2009-Ohio-1700, 911 N.E.2d 933. The court concluded that disappointed bidders can recover bid-preparation costs and that because such costs are monetary damages, the Court of Claims does have subject-matter jurisdiction to hear all of Meccon's claims. Id. at ¶ 26. The court also determined that Meccon's argument that the Court of Claims erred when it failed to consider Meccon's motion for a temporary restraining order was moot. Id. at ¶ 27, 29.

126 Ohio St.3d 233

We accepted the university's appeal under our discretionary jurisdiction. 122 Ohio St.3d 1502, 2009-Ohio-4233, 912 N.E.2d 107. 1

{¶ 8} The university contends that Cementech, Inc. v. Fairlawn, 109 Ohio St.3d 475, 2006-Ohio-2991, 849 N.E.2d 24, controls the disposition of...

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8 practice notes
  • Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., No. SC94680
    • United States
    • United States State Supreme Court of Missouri
    • 26 July 2016
    ...preparation costs. See Owen of Georgia, Inc. v. Shelby Cnty. , 648 F.2d 1084, 1095 (6th Cir.1981) ; Meccon, Inc. v. Univ. of Akron , 126 Ohio St.3d 231, 933 N.E.2d 231, 232 (Ohio 2010) ; Kajima/Ray Wilson v. Los Angeles Cnty. Metro. Transp. Auth. , 23 Cal.4th 305, 96 Cal.Rptr.2d 747, 1 P.3d......
  • Delasoft, Inc. v. Ohio Dep't of Admin. Servs., No. 19AP-761
    • United States
    • United States Court of Appeals (Ohio)
    • 30 June 2020
    ...2010-Ohio-1844, 928 N.E.2d 728, ¶ 11 (a public-works construction contract case), and further invoking (1) Meccon v. Univ. of Akron , 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231 (a case involving plumbing and HVAC contracts for "public-improvement work," see id. at ¶ 2, and noting th......
  • Modern Office Methods, Inc. v. State Univ., No. 11AP–1012.
    • United States
    • United States Court of Appeals (Ohio)
    • 9 August 2012
    ...the trial court did so after reviewing the legitimacy of MOM's claim for monetary damages, based upon Meccon, Inc. v. Univ. of Akron, 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231, and subsequently determining MOM could not rely on Meccon's principles in this case to allege a monetary ......
  • Swan Super Cleaners, Inc. v. Franklin Cnty. Bd. of Comm'rs, No. 17AP–185
    • United States
    • United States Court of Appeals (Ohio)
    • 12 December 2017
    ...rendered moot. The relief sought only concerns actions that concern the bidding of the contract. See Meccon, Inc. v. Univ. of Akron , 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231. Nor was it the case that Swan Cleaners sought an injunction but was denied, which then could be reviewed ......
  • Request a trial to view additional results
8 cases
  • Byrne & Jones Enters., Inc. v. Monroe City R-1 Sch. Dist., No. SC94680
    • United States
    • United States State Supreme Court of Missouri
    • 26 July 2016
    ...preparation costs. See Owen of Georgia, Inc. v. Shelby Cnty. , 648 F.2d 1084, 1095 (6th Cir.1981) ; Meccon, Inc. v. Univ. of Akron , 126 Ohio St.3d 231, 933 N.E.2d 231, 232 (Ohio 2010) ; Kajima/Ray Wilson v. Los Angeles Cnty. Metro. Transp. Auth. , 23 Cal.4th 305, 96 Cal.Rptr.2d 747, 1 P.3d......
  • Delasoft, Inc. v. Ohio Dep't of Admin. Servs., No. 19AP-761
    • United States
    • United States Court of Appeals (Ohio)
    • 30 June 2020
    ...2010-Ohio-1844, 928 N.E.2d 728, ¶ 11 (a public-works construction contract case), and further invoking (1) Meccon v. Univ. of Akron , 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231 (a case involving plumbing and HVAC contracts for "public-improvement work," see id. at ¶ 2, and noting th......
  • Modern Office Methods, Inc. v. State Univ., No. 11AP–1012.
    • United States
    • United States Court of Appeals (Ohio)
    • 9 August 2012
    ...the trial court did so after reviewing the legitimacy of MOM's claim for monetary damages, based upon Meccon, Inc. v. Univ. of Akron, 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231, and subsequently determining MOM could not rely on Meccon's principles in this case to allege a monetary ......
  • Swan Super Cleaners, Inc. v. Franklin Cnty. Bd. of Comm'rs, No. 17AP–185
    • United States
    • United States Court of Appeals (Ohio)
    • 12 December 2017
    ...rendered moot. The relief sought only concerns actions that concern the bidding of the contract. See Meccon, Inc. v. Univ. of Akron , 126 Ohio St.3d 231, 2010-Ohio-3297, 933 N.E.2d 231. Nor was it the case that Swan Cleaners sought an injunction but was denied, which then could be reviewed ......
  • Request a trial to view additional results

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