Goss v. State Capitol Commission

The opinion of the court was delivered by

Scott, J.

This is an action brought to restrain the board of state capítol commissioners from entering into a contract with Moffatt Brothers for the erection of the foundation and basement of the new state capítol.

On September 12, 1894, said board issued a call for bids for said work according to plans and specifications then on file in its office. The call was duly advertised for thirty days and, according to its provisions, the bids received were opened October 15, 1894. Twenty-two bids were received; one by Lillis & Tucker was several thousand dollars lower than any of the others, and they were found by the board to be the lowest responsible bidders and their bid was accepted accordingly. On the 27th day of said month said Lillis & Tucker notified the board of their refusal to enter into a contract in conformity with their bids and to execute the contractor’s bond required of them, and thereupon the board rejected all bids and made a new call for bids, which call contained the following provision not contained in the first call:

“ Blank forms of the' contract and bond which the successful bidder will be required to enter into are on file with the plans and specifications at the office of the architect, which contract and bond the successful bidder will be required to execute at once upon the acceptance of hiso bid by the commission.”

The bond contained a provision for the protection of mechanics and material men, as is required by § 2415, Gen. Stat. The specifications were also amended so as to include storm sheds to cover the structure and secure certain minor changes in the work.

A number of bids were received under the second call on November 8th, the day specified therein. Said Moffatt Bros, were the lowest bidders at this time and were adjudged to be the lowest responsible bidders. This action was brought before the award under the second call was made. An application for a restraining order pending the action based on the complaint was denied. On the same day, November 12, 1894, the award was made to Moffatt Bros., who forthwith executed the contract referred to in the call. A demurrer was interposed to the complaint, which was sustained by the court, and judgment rendered thereon against plaintiff. This appeal was prosecuted therefrom.

Sec. 7 of the act (Laws 1893, p. 466), authorizing the work contains the following provision:

“The bid of the lowest responsible bidder shall be accepted, saving that the board shall have the right to reject all bids.”

A bid which was several thousand dollars lower than appellant’s bid was submitted by Flynn & Rockmark under the first call. It is alleged in the complaint that this firm also failed to comply with the requirements of the call by not tendering the bond therein required; and it is contended that upon the failure of Lillis & Tucker and Flynn & Rockmark to comply with the conditions of the call, appellant was the lowest responsible bidder, and that his bid should have been accepted; and it is further alleged that he offered to execute the contract and bond required. It is not alleged that Flynn & Rockmark’s bid was accepted, or that they were given any opportunity by the board to enter into the contract and bond provided for. Nor is it alleged that the appellant was found to be the lowest responsible bidder. It simply appears in substance that upon the failure of Lillis & Tucker to comply with the conditions required, the board rejected all bids and made a new call containing the additional provisions and changes aforesaid.

In our opinion the appellant has utterly failed to state a case entitling him to any relief. A discretionary power was conferred upon the board to reject all bids, and this was virtually what was done. Conceding that the discretion vested in the board is one that courts would exercise some control over, it does not appear that it was improperly exercised, or that there was any abuse thereof. The board had a right to reject all •the bids and issue a new call prescribing different conditions. There was no discrimination against the appellant in this particular; the bids were all rejected. The fact that the appellant offered to perform the work under the bid first submitted by him and enter into the contract and bond as subsequently changed would not be sufficient to compel the board to enter into a contract with him. Nor would the fact that appellant offered to do the work for the sum bid by Moffatt Bros, under the second call, which was something less than $200 below the bid submitted by appellant under the first call, entitle him to such relief.

We are of the opinion that the judgment of the court was clearly right, and it is affirmed.

Hoyt, O. J., and Dunbar, and Anders, JJ., concur.