Summary
In Thos. J. Dyer Co. v. Franklin Cty. Convention Facilities Auth. (1990), 61 Ohio Misc.2d 132, 575 N.E.2d 532, Judge David Johnson held that a public entity did not abuse its discretion when it rejected all bids, in order to afford bidders an equal opportunity to resubmit bids and thereby clear up a potential ambiguity in contracting documents.
Summary of this case from Roth Produce Co. v. Dept. of Adm. ServsOpinion
No. 90-CVH-08-6062.
Decided August 21, 1990.
Vorys, Sater, Seymour Pease, Thomas M. Taggart and John L. Landolfi, for plaintiff.
Schwartz, Kelm, Warren Rubenstein and Richard A. Frye, for defendant Franklin County Convention Facilities Authority.
Arter Hadden and Michael W. Currie, for intervening defendant Limbach Company.
This matter is before the court on plaintiff's motion for a temporary restraining order. On April 27, 1990, defendant Franklin County Convention Facilities Authority ("FCCFA") issued invitations to bid on the construction of a convention center. The specifications provided that the contract would be awarded to the "lowest responsible and responsive bidder." FCCFA reserved the right to reject all proposals and to advertise for other bids. Plaintiff Thomas J. Dyer Company ("Dyer") submitted the lowest bid regarding heating, ventilation and air conditioning. Plaintiff attended a "scope" or "pre-award" meeting with the construction manager on June 26, 1990. At that time, the construction manager did not indicate to plaintiff that there was any problem regarding Item 31 of plaintiff's contract bid.
Before FCCFA awarded the contract, Claire Hazucha, Executive Director of FCCFA, decided to reject all bids and to rebid the contract. Hazucha took such action because Dyer listed more than one manufacturer for equipment required under Item 31 of the contract. On August 10, 1990, Dyer commenced this action seeking injunctive and declaratory relief.
Since this matter has not proceeded ex parte, the court considers the relief sought as a preliminary injunction rather than a temporary restraining order. In deciding whether a preliminary injunction shall issue, courts generally consider four factors: (1) whether the movant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether the movant has shown irreparable injury; (3) whether the preliminary injunction could harm third parties; and (4) whether the public interest would be served by issuing the preliminary injunction. Frisch's Restaurant, Inc. v. Shoney's, Inc. (C.A. 6, 1985), 759 F.2d 1261, 1263. See, also, Gobel v. Laing (1967), 12 Ohio App.2d 93, 41 O.O.2d 175, 231 N.E.2d 341; Goodall v. Crofton (1877), 33 Ohio St. 271.
Plaintiff must demonstrate that it is entitled to a preliminary injunction by presenting evidence which is clear and convincing. Southern Ohio Bank v. Southern Ohio Savings Assn. (1976), 51 Ohio App.2d 67, 5 O.O.3d 183, 366 N.E.2d 296. Clear and convincing proof means more than is required in ordinary civil cases, but less than the beyond-a-reasonable-doubt proof required in criminal cases. McClintock v. Sweitzer (1941), 138 Ohio St. 324, 327, 20 O.O. 383, 384, 34 N.E.2d 781, 783.
In order to demonstrate a substantial likelihood or probability of success on the merits, plaintiff must demonstrate that the decision to reject all bids was an abuse of discretion by FCCFA. Dayton, ex rel. Scandrick, v. McGee (1981), 67 Ohio St.2d 356, 21 O.O.3d 225, 423 N.E.2d 1095. An abuse of discretion means more than an error of law or judgment, requiring instead that FCCFA's action be unreasonable, arbitrary, or irrational. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205. "* * * [A] determination to reject all bids rather than to award a contract to the lowest bidder does not per se constitute an abuse of discretion even though the bid of such lowest bidder meets the specifications." State, ex rel. Polaroid Corp., v. Denihan (1986), 34 Ohio App.3d 204, 207, 517 N.E.2d 1021, 1025.
Hazucka determined that the bid proposal forms were ambiguous since Dyer listed multiple manufacturers while the remaining bidders listed only one, and there was evidence that that could result in an unfair advantage to Dyer. Thus, Hazucha decided to reject all bids and to rebid the contract so that all bidders would be on an equal footing. Considering these facts and the above law, Dyer has not demonstrated that FCCFA abused its discretion.
Dyer has not shown that it will suffer irreparable harm if an injunction does not issue. Only FCCFA had the authority to award the contract. Since FCCFA rejected the bid (a right conferred by R.C. 307.90[A] and reserved in the instructions to bidders) prior to an award, Dyer lost no contractual rights. FCCFA rejected all bids and gave all bidders an equal opportunity to resubmit bids. Therefore, none of the bidders, including Dyer, suffered any loss. Buckeye Safety Supply, Inc. v. Flaherty (Feb. 27, 1990), Franklin App. No. 89AP-857, unreported, 1990 WL 17290. If Dyer can prove monetary loss, it has an adequate remedy at law by bringing an action for damages.
The other bidders on this project are reformulating their bids. Dyer seeks to enjoin this process, but, as described above, it cannot demonstrate probable success on the merits. Thus, the court finds that issuance of an injunction will harm the other bidders by upsetting the rebidding process.
Finally, there being no abuse of discretion, the court finds that it is not in the public interest for it to substitute its judgment for that of FCCFA.
Upon consideration of the evidence, the court finds that Dyer has not demonstrated by clear and convincing evidence that it is entitled to a preliminary injunction. Plaintiff's motion is denied.
Reporter's Note: This cause was voluntarily dismissed with prejudice by the plaintiff pursuant to Civ.R. 41(A) on August 27, 1990.