Maryland Pavement Co. v. Mahool

This appeal is from an order of the Superior Court of Baltimore City refusing a mandamus and dismissing the petitioner's application therefor. A statement of the facts will be necessary for an understanding of the case.

By Ordinance No. 258 of the Mayor and City Council of Baltimore, passed on the 9th day of April, 1907, the City Engineer was authorized and directed to have all that part of Monroe street from the southeast side of the Baltimore and Ohio Railroad tracks to the northwest side of Columbia avenue graded and paved with belgian blocks and curbed or recurbed where necessary with six (6) inch granite, gneiss, armored concrete or other curb, approved by the City Engineer; all of said work was to be done in accordance with specifications to be prepared by the City Engineer, who should advertise for proposals for doing the work.

On the 4th of March, 1908, Mr. Fendall, the City Engineer, published in the Baltimore Sun the following advertisement calling for proposals:

DEPARTMENT OF PUBLIC IMPROVEMENTS. SUB-DEPARTMENT OF CITY ENGINEER. BALTIMORE, March 4, 1908.

Separate sealed proposals, addressed to the Board of Awards, care of the City Engineer, will be received by the City Register at his office, City Hall, until 11 A.M., Wednesday, March 18th, 1908, to grade, curb and pave the following streets:

With Belgian Blocks. Monroe Street from the southeast side of the B. O.R.R. tracks to the northwest side of Columbia Avenue. With Vitrified Brick. Lakewood Avenue from the south curb line of Eastern Avenue to the north curb line of Canton Avenue.

Specifications and proposal sheets will be furnished upon application to this office. The Board of Awards reserves the right to reject any and all bids. A certified check on a clearinghouse bank for an amount as recited in the specifications, made payable to the Mayor and City Council of Baltimore, must accompany each bid.

B.R. FENDALL, Approved: City Engineer.

J. BARRY MAHOOL, President Board of Awards.

The specifications, which were subsequently presented to the bidders, contained this provision:

"None but the best materials of the several descriptions shall be used, and all material shall be equal in every respect to the requirements of the specifications and to the samples furnished.

"Each bidder must deposit with his proposal a sample graniteblock, stating at what quarry it was manufactured and agree ifthe contract is awarded to him to use only blocks made at saidquarry and equal to the sample."

It appears there were three bids submitted to the Board of Awards, and the contract for the paving of the street was on the 25th of March, 1908, awarded to P. Flanigan Sons. The report of the City Engineer stated they were the lowest bidders who had complied with the specifications.

While it will be seen that the appellant's bid was the lowest in amount for the paving, it did not comply with the requirements of the specifications, that each bidder must deposit with his proposal a sample granite block, stating at what quarry it was manufactured and agreeing, if the contract was awarded to it, to use only blocks made at said quarry and equal to the sample.

The case was heard in the Court below upon petition, answer, traverse and joinder of issue to the defendant's answer to the paragraphs of the petition and proof.

The Court rejected the prayers on behalf of the petitioner and granted the prayer on behalf of the respondent, to the effect that no evidence has been offered legally sufficient under the pleadings to entitle the petitioner to the writ of mandamus, and that the verdict of the Court, sitting as a jury, must be for the defendant.

The questions presented for our consideration by the rulings of the Court upon the prayers and necessary for the determination of the case on this appeal practically come to this: (1) Was the failure of the appellant to comply with the specifications and proposals a sufficient reason for the refusal of the appellees to award the contract on the bid presented by it? (2) Is not the letting of contracts by the Board of Awards, like the one in question, to the lowest bidder, in the absence of fraud, absolutely final and beyond the control of the Courts by mandamus?

Now, in answer to the first inquiry it is only necessary to say that it is a rule of very general application, where reasonable requirements have been prescribed as to the manner of bidding, such requirements must be complied with in order that a bid shall be entitled to consideration. While slight irregularities in a bid not affecting its substantial characteristics may be disregarded, yet the bid may be rejected for such reason and the Court will not interfere in the absence of fraud or collusion. 20 A. E. Ency. of Law, 1167 and 1168; Weed v.Beach, 56 Howard Pr. 470; People v. Croton, 26 Barb. 241;Wiggin v. Phil., 2 Brew (Pa.) 444.

There is no evidence in this case to show that the requirement in the proposal that each bidder should deposit a sample granite block, stating at what quarry it was manufactured, etc., was an unreasonable requirement. On the contrary, it appears from the testimony of Mr. Fendall, the City Engineer, that this provision in the specifications was not only a reasonable one, but was inserted for the benefit and for the protection of the best interest of the City.

It is conceded that the appellant did not comply with the conditions of the specifications prepared and published by the City Engineer in this respect, and failing to so comply, we are of the opinion it had no right, under the authorities cited, to even have its bid considered by the Board of Awards. 28 Cyc. 659; Smith v. City, Brewst. Pa. 443; Case v. Trenton, 68 Atlantic, 58.

But, apart from this, the advertisement in this case by the City Engineer expressly provided that "the Board of Awards reserves the right to reject any and all bids."

In Chicago Sanitary Dist. v. McMahon, 110 Ill. App. 510, it is distinctly held that it is not unlawful where the lowest bidder has not conformed to the advertised requirements to let the contract to the next lowest bidder. Lauchheimer v. Phil., 15 Pa. Dist. 311; State v. Cincinnati Bd., 4 Ohio Cir. Ct. 76.

While the requirement of a charter that a contract be awarded to the lowest bidder is mandatory, yet the authorities are uniform in holding that in determining who is the lowest responsible bidder the municipal authorities have a wide discretion, will not be controlled by the Courts except for arbitrary exercise, collusion or fraud, and they need not be guided in this determination solely by the question of the pecuniary responsibility of a bidder, but may consider his ability to respond to the requirements of the contract and his general qualifications to properly execute the work. 28 Cyc. 1031;Keogh v. Wilmington, 4 Del. Ch. 491.

As to the second proposition but little need be said. The subject has been frequently considered by this Court, and all the cases hold that when the awarding of a contract like the one here in question has been committed to a board, in the absence of fraud or collusion, its decision is final and conclusive and cannot be controlled by the Courts.

The case of Madison v. Harbor Board, 76 Md. 395, is directly in point and is decisive of this case. The better doctrine, however, as to all cases of this nature and one which has the support of an almost uniform current of authority is that the duties of officers entrusted with the letting of contracts for works of public improvements to the lowest bidder are not duties of a strictly ministerial nature, but involve the exercise of such a degree of official discretion as to place them beyond the control of Courts by mandamus. Devin v. Belt, 70 Md. 354;Balto. C. Pt. R.R. Co. v. Latrobe, 81 Md. 246; Henkel v.Millard, 97 Md. 30; Balto. City v. Flack, 104 Md. 143; 28Cyc. 663; 20 Encyclc. of Law, 1169.

There is no allegation or suggestion of fraud in the awarding of the contract in this case, and, without prolonging this opinion by a discussion of well- settled principles of law, we will affirm the order refusing the mandamus and dismissing the petition.

For the reasons stated there was no error in the rejection of the petitioner's prayers and in granting the respondents' prayer that no evidence had been offered legally sufficient under the pleadings to entitle the petitioners to the writ of mandamus.

Order affirmed, with costs.