Steelgard, Inc. v. Jannsen

• Decision Date: 13 August 1985
• Citation: 217 Cal.Rptr. 152,171 Cal.App.3d 79
• Court: California Court of Appeals Court of Appeals
• Parties: , 26 Ed. Law Rep. 1109 STEELGARD, INC., Plaintiff and Appellant, v. David JANNSEN, as Director, etc., et al., Defendants and Respondents, Gary Doupnik Manufacturing, Inc., Intervener and Respondent, AURORA MODULAR INDUSTRIES, et al., Real Parties in Interest and Respondents. Civ. 22559.

Page 152

217 Cal.Rptr. 152

171 Cal.App.3d 79, 26 Ed. Law Rep. 1109

STEELGARD, INC., Plaintiff and Appellant, v. David JANNSEN, as Director, etc., et al., Defendants and Respondents, Gary Doupnik Manufacturing, Inc., Intervener and Respondent, AURORA MODULAR INDUSTRIES, et al., Real Parties in Interest and Respondents.

Civ. 22559.

Court of Appeal, Third District, California.

Aug. 13, 1985.

Tonsing & Heimann and Richard M. Heimann, Danville, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Robert L. Mukai, Deputy Atty. Gen., for defendants and respondents.

Gerald W. Nash, Sacramento, for intervener, real parties in interest/respondents.

CARR, Acting Presiding Justice.

Plaintiff Steelgard, Inc. (Steelgard) appeals from the order denying a peremptory writ of mandate to prohibit the State Department of General Services (Department) from awarding certain contracts for the purchase of portable classrooms and to direct it to procure such classrooms under the provisions of the State Contract Act. (Ch. 1 (commencing with § 10100) part 2, div. 2 of the Pub.Con.Code.) Essentially Steelgard contends the Department when purchasing portable classrooms pursuant to the Emergency School Classroom Law of 1979 (ch. 25 (commencing with § 17785) part 10, div. 1, tit. 1 of the Education Code) must follow the State Contract Act's (Pub.Con.Code, § 10100, et seq.) bidding procedures for state construction contracts rather than the bidding procedures for the procurement of materials, supplies, and equipment. (Gov.Code, § 14780 et seq.) ¹ The latter procedures were employed by the Department in the procurement of the portable classrooms in question. For reasons herein stated we shall affirm.

FACTS

In May 1982, the Department's office of procurement issued invitations for bids for the purchase of approximately 270 portable school classroom facilities. Thirteen bids were received. Steelgard, a manufacturer of factory-built portable buildings, was one of the bidders. On June 30, the office of procurement announced its proposed contract awards. Steelgard was the low bidder on five buildings and was to receive a contract only on this portion of the total contract. Prior to this announcement, Steelgard protested the bidding procedures on the ground the office was required to conduct bidding in accordance with the State Contract Act, not the Purchasing Act. The Board rejected Steelgard's protest as beyond its jurisdiction.

Steelgard then filed its "petition for writ of mandate and/or prohibition" seeking to prohibit defendants David Jannsen, Director of the Department of General Services, and John Babich, Chief of the Department's Office of Procurement, from awarding any contracts pursuant to the invitations for bids and to compel them to resolicit bids and award the contracts under the State Contract Act. Steelgard alleged it believes it would have been awarded a substantial portion of the contracts if bids had been solicited under the State Contract Act.

The trial court issued an "alternative writ of mandate and prohibition" prohibiting defendants from issuing the subject contracts and directing them to solicit bids pursuant to the procedures of the State Contract Act, or in the alternative to show cause on July 30 why they have not done so. ²

On the same day, the office of procurement issued two purchase orders for 106 portable classrooms, totaling $2,121,172 to intervener Gary Doupnik Manufacturing, Inc., and real party in interest Aurora Modular Industries. After settling other bid protests, the office of procurement issued After a hearing, the trial court denied Steelgard's petition for a writ of mandate and prohibition and discharged the alternative writ. The court concluded the office of procurement properly solicited bids for the purchase of portable classrooms under the provisions of the State Purchasing Act governing procurements of materials, supplies and equipment. This appeal followed.

purchase orders for 86 portable classrooms, totaling $1,763,850, to National Mobile Space, Inc., another real party in interest, and for five portable classrooms, totaling $97,500, to Steelgard. National Mobile Space, Inc. was [171 Cal.App.3d 83] awarded an additional contract for 20 buildings in the amount of $399,598; and Aurora Modular Industries was awarded an additional contract for 29 buildings in the amount of $563,847.

DISCUSSION

A writ of mandate lies "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; ..." (Code Civ.Proc., § 1085.) " 'Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].' [Citation.]" (Loder v. Municipal Court (1976) 17 Cal.3d 859, 863, 132 Cal.Rptr. 464, 553 P.2d 624.)

As to the petitioner's interest, the writ may not be issued where the injury is purely theoretical and the petitioner fails to show any benefit would accrue to him if the writ were issued, or that he will suffer any detriment if it is denied. (Parker v. Bowron (1953) 40 Cal.2d 344, 351-352, 254 P.2d 6; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 61, p. 3838.)

The central issue, as noted, is whether defendants had a duty to utilize the bidding procedures of the State Contract Act (Pub.Con.Code, § 10100 et seq.) in purchasing portable classrooms under the authority of the Emergency School Classroom Law of 1979. Defendants contend they properly utilized the bidding procedures which govern the procurement of materials, supplies, and equipment. (Gov.Code, § 14780, et seq; now Pub.Con.Code, § 10290 et seq.) ³

The Emergency School Classroom Law of 1979 invests in the State Allocation Board ("Board") the power and duty to "[h]ave constructed, furnished, equipped, or otherwise require whatever work is necessary to place, portable classrooms on school sites where needed." (Ed.Code, § 17788, subd. (d).) From moneys available in the State School Building Aid Fund, the Board "shall make available to the Director of General Services such amounts as it determines necessary to provide the assistance" necessary to procure portable classrooms. (Ed.Code, § 17788, subd. (f).)

The Board must use "performance specifications for portable classrooms complying with Sections 39140 to 39156 [of the Education Code], inclusive, which are capable of being economically moved, and bids for the construction of which can be solicited from more than one responsible bidder. The board shall from time to time solicit bids from, and award to, the lowest responsible competitive bidder, contracts for the construction or purchase of only such numbers of portable classrooms as have been approved for lease to eligible school districts and county superintendents of schools." (Ed.Code, § 17793; italics added.)

Regulations implementing the Emergency School Classroom Law appear at chapter 3 of title 2 of the California Administrative Code (commencing with § 1862.5). These regulations define "portable classrooms" as "[s]ingle classroom factory-built buildings which are constructed in accordance with performance specifications adopted by the Board." (Cal.Admin.Code, tit. 24, § 1862.50.) When the need arises, the Board may "authorize the Office of Procurement of the Department of General Services to acquire portable classrooms for lease to eligible districts." (Cal.Admin.Code, tit. 24, § 1862.51.)

The performance specifications, with which the Board must comply, appear at article 3 (commencing with § 39140) chapter 2, part 23, division 3, title 2 of the Education Code. The procedures set forth provide for the approval of school building construction by the Department of General Services and require the Department to supervise the design and construction of any school building "to ensure that plans and specifications comply with the rules and regulations adopted pursuant to this article and building standards published in Title 24 of the California Administrative Code, and to ensure that the work of construction has been performed in accordance with the approved plans and specifications, for the protection of life and property." ⁴

Before commencement of any fabrication, construction, or alteration of a portable school building of a type previously approved by the Department, the Department must give its written approval of the plans as to the safety and design of construction. (Ed.Code, § 39144.5.)

Article 5 of the Education Code (commencing with § 39190) provides an alternative procedure to article 3 for the approval of construction and installation of factory-built school buildings not over 1,000 square feet in area. ⁵ Such buildings are defined as "any building designed or intended for use as a school building which is either wholly manufactured or is in substantial part manufactured at an offsite location in accordance with building standards adopted and approved pursuant to Chapter 4 (commencing with Section 18935) of Part 2.5 of Division 13 of the Health and Safety Code and other regulations adopted by the Department of General Services, to be assembled or erected on a school site." (Ed.Code, § 39190.)

Regulations adopted by the Department must at least comply with the building standards required by articles 2 and 3 of the Education Code. (Ed.Code, § 39191.) ⁶

Article 5 permits a manufacturer of portable classrooms to submit its plans, specifications, and methods of construction to the Department for approval. Once the Department gives its approval, a school district which is otherwise required by articles 2 or 3 to submit plans and specifications of a proposed school building for the Department's approval, may, instead, include in its application for approval a notification that it intends to utilize an approved...