Robert G. Lassiter & Co. v. Taylor

• Decision Date: 21 April 1930
• Parties: ROBERT G. LASSITER & CO. v. TAYLOR.
• Court: Florida Supreme Court

128 So. 14

99 Fla. 819

ROBERT G. LASSITER & CO. v. TAYLOR.

Florida Supreme Court

April 21, 1930

Commissioners' Decision.

Suit by John A. Taylor against Robert G. Lassiter & Company. From an adverse decree, defendant appeals.

Affirmed.

Appeal from Circuit Court, Highlands County; W. J Barker, judge.

COUNSEL

Shutts & Bowen, of Miami, and Lawrence & Kash, of Sebring, for appellant.

L'Engle & Shands, of Jacksonville, and R. R. Rhudy, of Sebring, for appellee.

OPINION

DAVIS C.

This case is here upon appeal from an order overruling a demurrer to the bill of complaint of the appellee, a taxpayer, and granting a temporary injunction restraining the city of Sebring from making further payments to the appellant on a contract which appellant had with the said city for making certain street improvements.

Stated succinctly, in the language of appellant, in its brief, the application for injunctive relief is based upon the following facts:

1. The the contract, after being let upon competitive bidding, was subsequently modified to provide for an entirely different type of work at a different price without submitting the contract for the work as modified to competitive bids.

2. That the work was improperly and unskilfully done, and the city should have been required to secure an abatement in price to the extent that the contract was unperformed, in settling with the contractor.

No question is raised as to the general power of the city to make the improvement or as to the legality of the assessments against abutting owners therefor. Nor has the legality of the proceedings culminating in the making of the contract been questioned.

The appellant, in response to a notice to bidders, submitted two bids; one for concrete pavement according to the plans and specifications filed with the city clerk or city engineer, and one for 'Densite' pavement according to specifications accompanying the bid. The contract was awarded to appellant for the concrete pavement as called for by the plans and specifications prepared by the city, and it is alleged in substance that several weeks after advertising for bids and letting the contract to the appellant, the said Robert G. Lassiter & Company, for a concrete pavement with curb and gutters 'in accordance with plans and specifications on file at the office of the city clerk or the city engineer,' the city council adopted a resolution changing the type of pavement from concrete as shown by the specifications to a 'Densite' pavement with a 'five inch Densite base and 1 1/2 inch asphalt wearing surface,' at a saving to the city, but to the great advantage of, and more profitable to, the appellant. This change was made without calling for or receiving competitive bids. According to the plans and specifications on file at the office of the city clerk or city engineer, the concrete was to be known as a 1:2:3 mixture, that is, one part of Portland cement, two parts of sand of a specified fineness, and three parts of gravel or crushed stone of a specified quality.

The specification for 'Densite' pavement called for a mixture of 1.75 barrels of cement, the required amount of water and amorphous silica (from 6 to 12 pounds), and enough sand to make one cubic yard of concrete in place.

The bill further alleges that the contractor failed to perform the contract in the altered form in the manner therein required in a number of particulars, and that because of such noncompliance with the contract the pavement has cracked and broken and will rapidly deteriorate and become worthless; that the city has refused to pay the balance of the contract price, amounting to $56,000, unless the appellant secures the city against repair for a period of five years, and that the appellant and the city are about to enter into an arrangement, unless restrained, whereby the city will pay to the appellant the balance; that under and by virtue of section 11 of article 8 of the city charter, chapter 11158, Special Laws of Florida 1925, upon the completion of improvements the owners of property specially assessed for street improvements are to be repaid the difference in the assessment as originally made and approved and confirmed, and the actual cost of the improvements to be paid by special assessment as finally determined upon completion of the improvements; that the contractor had already received the reasonable worth of the work and that the city should be required to withhold a part of the contract price to indemnify it, and the abutting owners for defective performance of the contract; that if the city should pay the contractor the said sum of $56,000, in consideration of the contractor agreeing to repair the street as aforesaid, the abutting owners, of which appellee is one, will be assessed for repairs as distinguished from the original cost of the improvement; and that the appellee requested the city council to resist the claim, but the city council refused to grant the request and has declared its intention of making settlement with the appellant.

Section 13 of article 8 of the city charter (chapter 11158, Special Laws of Florida 1925) contains the following provision: 'The City Council shall have exclusive power to make all public improvements and expenditures, by ordinances, but shall let all contracts for over Two Hundred ($200.00) Dollars to the lowest responsible bidder.'

The appellant concedes that this provision makes competitive bidding for construction of public improvements mandatory, but says that the complainant 'does not show expressly or by inference that densite concrete is not a standard concrete pavement or is not of that class or was not understood by any other bidder to have been excluded or that any bidder failed to bid thereon by reason of the manner in which the specifications were worded.'

The notice to bidders called for bids for concrete, brick, or bituminous pavement with necessary curbs, etc., 'in accordance with plans and specifications on file at the office of the city clerk, or the city engineer,' and did not call for bids for 'Densite' concrete or any other payment, whether standard or otherwise, equally as good as concrete, brick, or bituminous pavement. While there was nothing in the notice to preclude the submission of proposals of other types of pavement, it put interested parties on notice of the kinds of pavement for which bids were desired, and prospective bidders of experience were justified in concluding therefrom that bids for a character of pavement, other than those mentioned, would not be considered. The appellant, being the lowest bidder, secured a contract for a concrete pavement of the character provided for in the plans and specifications. The appellee makes no complaint as to the awarding of that contract, but insists in effect that if the said contract was to be abandoned, the city could not make a new, altered, or substituted contract, except upon competitive bids.

The pavement that was put down was a materially different pavement from the one provided for in the original contract and for which bids were invited. The quoted provision of the charter being mandatory in its nature, any contract entered into by the city for construction work, other than the kind authorized by the original resolution adopted by the council, the plans and specifications for which were referred to in the notice to bidders as being on file at 'the office of the city clerk or the city engineer,' would have been in violation of the provision of the charter and therefore illegal and void. Anderson v. Fuller, 51 Fla. 380, 41 So. 684, 688, 6 L. R. A. (N. S.) 1026, 120 Am. St. Rep. 170; Adolphus v. Baskin, 95 Fla. 603, 116 So. 225; 19 R. C. L. 1064-1071 (§ 357, note 18); 44 C.J. 326-328; Staebler & Gregg v. Town of Anchorage, 186 Ky. 124, 216 S.W. 348; Inge v. Board of Public Works, 135 Ala. 187, 33 So. 678, 93 Am. St. Rep. 20; Reams v. Cooley, 171 Cal. 150, 152 P. 293, Ann. Cas. 1917A, 1260; Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N.W. 603, 106 Am. St. Rep. 931; 28 Cyc. 1036; 2 Dillon Municipal Corporations (5th Ed.) § 807; Manly Bldg. Co. v. Newton, 114 Ga. 245, 40 S.E. 274; Dolezal v. Bostick, 41 Okl. 743, 139 P. 964.

The city council, at the time the bids were opened and the original contract was awarded to the appellant, could not lawfully agree with appellant for the laying of a pavement known as 'Densite.' It follows that the city could not circumvent the charter provision by first entering into a legal contract for pavement 'in accordance with plans and specifications on file,' and later, by agreement, change the contract to a different type of pavement or make a new contract. That would be doing indirectly what could not be done directly. 44 C.J. 326; Donnelly, The Law of Public Contracts, 220.

The intent of the charter provision, requiring such contracts to be let or awarded to the lowest bidder for the work, is to secure the best improvement at the lowest possible cost to the taxpayer and to prevent fraud, favoritism, and extravagance in the expenditure of public funds. 44 C.J. 324, 325; Anderson v. Fuller, supra; Inge v. Board of Public Works, supra.

The charter mandatorily required as a condition precedent to the making of the contract that it be let to the lowest responsible bidder. In cases where contract amounts to more than $200, section 13, article 8, of the city charter is a limitation, so to speak, upon the general power of the municipality to make contracts for public improvements. 3 McQuillin, Mun. Corps. 2620, 2621.

Mr McQuillin, in his work on Municipal Corporations (volume 3, pp. 2565, 2566) says: 'If the charter or the statute applicable requires certain steps to be taken before making a contract, and it is mandatory in...