State ex rel. Waller Chemicals, Inc. v. McNutt

• Decision Date: 26 March 1968
• Docket Number: No. 12726,12726
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. WALLER CHEMICALS, INC., etc. v. Charles McNUTT, Director of Purchases for the State of West Virginia.

Page 170

160 S.E.2d 170

152 W.Va. 186

STATE of West Virginia ex rel. WALLER CHEMICALS, INC., etc. v. Charles McNUTT, Director of Purchases for the State of West Virginia.

No. 12726.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 27, 1968.

Decided March 26, 1968.

Syllabus by the Court

1. The joint bid of two corporations for certain floor maintenance products and services to be furnished to the State of West Virginia, submitted openly and in good faith to the Director of Purchases who accepted such bid and signed a contract with the bidders, which bid was not intended to affect and did not affect the market or price or supply of commodities or printing obtained or to be obtained by the State, is not invalid as violative of the statute which provides that it shall be unlawful for any person jointly to combine or collude or conspire in any way to affect the market or price or supply of commodities and printing obtained or to be obtained by the State; and the contract based on such joint bid will not be cancelled or disturbed in a mandamus proceeding at the instance of a person whose bid for such products and services was not accepted by the Director.

2. The extraordinary remedy of mandamus, though on the law side of the court, is limited as to time by the equitable doctrine of laches; and the burden of showing sufficient excuse for what appears from the record to be an unreasonable delay in the assertion of a clear legal right through the remedy of mandamus rests upon the person asserting such right.

3. The writ of mandamus will be refused when the petitioner has unreasonably delayed his application for such writ and by reason of the delay the rights of the defendant or innocent third parties will be prejudiced by the issuance of the writ.

4. 'As a general rule, the petitioner, before instituting a proceeding in mandamus, must demand performance of the act or the duty which he seeks to enforce; but when it appears that a demand would be useless or unavailing it need not be made.' Point 1, syllabus, Carter v. City of Bluefield, 132 W.Va. 881 (54 S.E.2d 747).

5. He who seeks relief by mandamus must show a clear legal right to the remedy.

Goad & Goodwin, Andrew J. Goodwin, Charleston, for relator.

C. Donald Robertson, Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge.

This is an original proceeding in mandamus instituted in this Court February 5, 1968, in which the petitioner, Waller Chemicals, Inc., a West Virginia corporation, seeks a writ to require the defendant, Charles McNutt, Director of Purchases for the State of West Virginia, to vacate and set aside all contracts made by his predecessor in office, Clarence E. Johnson, in the name of State of West Virginia with Odorite Service and Supply Company of Morgantown, West Virginia, and Ohio Valley Supply Company of Huntington, West Virginia, based upon a joint bid made by those corporations for certain products and services to be furnished and supplied to the State of West Virginia by the foregoing corporate bidders.

Upon the petition this Court issued a rule returnable February 27, 1968. Upon the return day of the rule the defendant filed his demurrer and answer to the petition and at that time this proceeding was submitted for decision upon the foregoing pleadings and the exhibits filed with the answer and upon the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

The material facts are not disputed and the question presented for decision is a question of law.

Pursuant to Section 12, Article 3, Chapter 5A, Code, 1931, as amended, Clarence E. Johnson, the predecessor of the defendant, as Director of Purchases of the State of West Virginia, solicited sealed bids for certain floor maintenance products and, after due notice, requested by published printed form bids for the purchase of such products. Eight different bids, including a bid by the petitioner and a joint bid by Odorite Service and Supply Company and Ohio Valley Supply Company, were submitted to the Director.

The petitioner alleged that prices in the bid submitted by it were ten to twenty per cent lower than the prices in the bid submitted by the next lowest bidder. The allegation was denied by the defendant who alleged in his answer that the bid of the petitioner was not the lowest bid and did not meet certain requirements of the specifications. The bids were considered by the Director, who held a hearing, and the Director determined that the bid of the petitioner was not the lowest responsible bid because certain products quoted by it did not meet the rigid specifications. The defendant also denied the allegation of the petitioner that the value of the contract made by the Director was in excess of $200,000.00 and asserted in its answer that the billings for the first four months of the contract, which was awarded October 17, 1967, amounted to only $11,890.00. The defendant also alleged that he and his predecessor knew that the petitioner was a small company, incorporated in March 1967, and that they doubted that it could furnish, from its single base in Ohio County, adequate services and delivery to all State agencies; that the joint corporate bidders had previously furnished satisfactory products and services; and that these matters were considered by the Director in awarding the contract. It also appears from a report to the then Director, which is an exhibit filed with the answer, that the joint bid was the only bid that complied with all specifications.

On June 13, 1967, the date for the receipt of the bids, Odorite Service and Supply Company and Ohio Valley Supply Company, with a letter of that date, submitted a joint bid to the then Director for the floor maintenance products involved in this proceeding. That letter contains these main provisions:

'Products quoted in our bid are produced by Lab Automated Chemicals of Baltimore, Maryland, for whom Odorite Service & Supply Company and Ohio Valley Supply Company have been designated franchised distributors for the State of West Virginia. As such, we can both provide the same bid products and services at the same price. In order to help us sell at the bid price, we have between ourselves assigned responsibility for different parts.

'Initially Ohio Valley Supply Company will serve the counties of Mason, Putnam, Kanawha, Clay, Nicholas, Greenbrier, Monroe, Summers, Mercer, McDowell, Wyoming, Raleigh, Boone, Logan, Mingo, Wayne, Cabell, Fayette, Lincoln; and Odorite Service & Supply Company will serve the following counties: Jackson, Roane, Wood, Wirt, Calhoun, Pleasants, Ritchie, Gilmer, Braxton, Webster, Pocahontas, Randolph, Lewis, Upshur, Barbour, Tucker, Doddridge, Pendleton, Harrison, Taylor, Marion, Monongalia, Preston, Grant, Hardy, Mineral, Hampshire, Morgan, Jefferson, Berkeley, Tyler, Wetzel, Marshall, Ohio, Brooke and Hancock.

'If we are successful in receiving this contract, we may from time to time reassign some County from one company to another. In that event we will so notify the State institutions located in the affected county.

'However, regardless of any agreement between ourselves, either of the undersigned companies can if necessary or desirable fulfill the contract on a state-wide basis.'

In support of its petition for a writ of mandamus the petitioner assigns these grounds: (1) The contract is invalid because the joint bid on which it is based was illegal and in violation of Section 38, Article 3, Chapter 5A, Code, 1931, as amended; and (2) the bid of the petitioner was the lowest responsible bid and should have been accepted by the Director.

On the contrary the defendant contends that (1) the joint bid was not violative of Section 38, Article 3, Chapter 5A, Code, 1931, as amended, but was a valid bid; (2) the Director did not abuse his discretion in rejecting the other bids and in accepting the joint bid; (3) the Commissioner of Finance and Administration, who is required to sign contracts signed by the Director, is a necessary party to this proceeding; (4) the contract, having been partially performed, cannot be cancelled or a rebidding required in a mandamus proceeding; and (5) the petitioner has failed to make a prior demand that the Director cancel the contract and require the submission of new bids.

The statute which the petitioner insists was violated by the acceptance by the Director of the joint bid of Odorite Service and Supply Company and Ohio Valley Supply Company, to the extent here pertinent, provides that: 'It shall be unlawful for any person to jointly combine or collude or conspire in any way to affect the market, or price, or supply of commodities and printing obtained or to be obtained by the State under the provisions of this article, and upon violation thereof such...