Mulcahy v. Bd. of Edn. , 25 Ohio App. 492 ( 1925 )

The board of education received bids on July 22, 1924, for the construction of a school building, to be completed by September 1, 1925.

On August 26, 1924, the board made an award of the contract to the Clemmer Johnson Company, but no contract was entered into with said company because the entering into of such contract was prevented by suit brought by a taxpayer. Without readvertising, the board, on December 30, 1924, awarded a contract to the C., W. P. Construction Company for the construction of a major portion of the building, and within a few days thereafter entered into a contract with such company, which provided that the building should be completed by the 1st day of July, 1926.

A taxpayer seeks an injunction and challenges the validity of the contract with the C., W. P. Construction Company on several grounds.

In our judgment this contract cannot be upheld, for the reason that the clerk of said board did not, before the entering into of said contract, "first" certify "that the money required for the payment of" such contract was "in the treasury to the credit of the fund from which it is to be drawn * * * and not appropriated for any other purpose," as is required by Section 5660, General Code.

The succeeding section (5661) provides that "All contracts, agreements or obligations, and orders or resolutions entered into or passed contrary to the provisions of the next preceding section, shall be void * * *."

The meaning of this statute is unmistakable; the filing of such certificate was an absolutely essential prerequisite, and, as no such certificate was filed, no valid contract could be entered into. State v. Kuhner King, 107 Ohio St. 406, 140 N.E. 344.

"3. The restrictive statutes of the state are enacted for the general good, and for the protection not only of the contractor but also of the taxpayer, and their provisions will be strictly adhered to, and it devolves upon those who deal with public officials to see for themselves that the statutes have been complied with." Knowlton Breinig v. Board of Education, 13 Ohio App. 30.

We are also of the opinion that said contract cannot be upheld for the further reason that it is not a contract in pursuance of and in accordance with the advertisement and plans and specifications upon which the bids were received. The plans and specifications provided that the building should be completed by September 1, 1925, and provided a penalty of $100 per day to be paid by the contractor for each day the completion of the building was delayed beyond the time specified. No bids having been received for the completion of the building by the 1st day of July, 1926, there was no competitive bidding for the contract which was awarded.

We are further of the opinion that, there being no provision in the law, or in the prescribed form of bid, or in the advertisement, or the specifications, concerning the length of time the bids should be subject to acceptance by the board, after the bids were opened, the board of education could hold the bidders to their bids only for a reasonable time after the opening of the same, and, the contract in question not having been awarded until 5 1/4 months after the opening of the bids, the board of education at that time did not have before it any bids binding upon the bidders, without their consent — such lapse of time being in our judgment more than a reasonable time. It is true that the C., W. P. Construction Company was willing to be bound by its bid, but, the others not being so bound, the contract was not awarded upon competition, as is required by law.

A bid is an offer, and, where the time that such offer shall remain open is not provided in the bid, or by law, or in the advertisement or specifications, it of course remains open for acceptance a reasonable time, and what is a reasonable time depends upon the circumstances in each case, and, if the bid is not accepted within a reasonable time, the offer may be considered by the bidder as withdrawn, and the public body receiving the bid cannot thereafter hold such bidder to his bid.

In this case, when the board awarded the contract to one bidder, it may not thereby have rejected all other bids (a question we do not find it necessary to definitely determine); but, if it expected thereafter to hold said other bidders to their bids, it should have acted with reasonable promptness, and, considering the time that elapsed, and all of the circumstances, we do not think the board could have held the C., W. P. Construction Company to its bid if that company had chosen not to have its offer considered as still open, and, when the board made the contract in question with the C., W. P. Construction Company it had no binding bids which it could hold the bidders to, and the transaction was therefore, in effect, a contract based upon the renewal of the offer of the C., W. P. Construction Company without the renewal of the offer of any other bidders.

None of these questions was raised or passed upon in the trial of the case in the court below, and, as the conclusion we have reached in reference to them disposes of the case, we do not deem it necessary to refer to the questions which were urged in the court below and found by that court to be sufficient to invalidate the contract.

Injunction may be allowed as prayed for.

Injunction allowed.

PARDEE, P.J., and FUNK, J., concur.