Leininger v. Ward , 126 Okla. 114 ( 1927 )

This appeal is to reverse a judgment of the district court, wherein the State Highway Commission was enjoined from entering into a contract with a firm known as McGuire Cavender for the construction of a highway project designated as Federal Aid Project 139.

The proceedings were begun by Green-Boots Construction Company, alleged competitive bidders for the construction work in question, but defendants in error, who were also alleged competitive bidders, were allowed to intervene, and the cause was tried upon the issues presented in their cross-petition, the issue being whether, under the statutes, time for the completion of the project is an essential item to be considered in determining the lowest bid.

Under the form of proposals or bids furnished by the Commission, each bidder is required to name the time in which he will complete the proposed work and each bidder is authorized to name a different time for completion.

Upon the project in question, viz, the construction of 18 miles of hard-surfaced road in Logan county, only three bids were submitted, to wit: Ward-Beekman Brooks and H. L. Canady Company proposed to complete the project in four months for $483,617.03; Green-Boots Construction Company proposed to complete it in six months for $452,918.10 (this was rejected because of some defect in the proposal); and McGuire Cavender proposed to complete it in twelve months for $444,776.50.

This last bid was accepted as the best bid, and this suit was brought to enjoin the Commission from awarding the contract to McGuire Cavender on the grounds and with the result above stated.

The only question presented is whether the Commission should have named the time for completion and required each bidder to bid upon the same time as well as upon the same specification in other regards.

This identical question was before us and definitely passed upon in cause No. 18405, Flynn Construction Co. v. Leininger,125 Okla. 197, 257 P. 374.

The same argument is made in this case that was made in the Flynn Case, supra, and the same authorities are cited in both cases. Both the argument and authorities were carefully considered in the Flynn Case, resulting in the conclusion set forth in the opinion in said case. We find no reason in the instant case for changing the conclusion reached in the Flynn Case, nor do we see any necessity for additional reasoning. The statute, chapter 48, S. L. 19234, contemplates and implies competitive bidding and competitive bidding means bidding upon the same material items in the subject-matter, bidding upon the same thing, and, as was held in the Flynn Case, the statutes make time an essential element in bids upon highway construction, and to permit each bidder to name a different time for completion is to violate the purpose of the statutes.

We note, however, that the record herein contains testimony intending to show that more competition and better results are obtained by requiring each bidder to name his own time than by requiring all bidders to bid upon the same time for completion. It may be a fact that more bids and better bids are now obtained than were obtained in former years, when all bidders were required to bid upon the same time, but the record is by no means conclusive that the better results are due to the change in the form of bids. In fact, it tends to refute the correctness of such contention, especially when we consider the manifold increase in road construction and corresponding increase in number of contractors.

Besides, when we take into consideration the expense of maintaining a detour, which in the present case is 20 miles, the interest paid by the counties on outstanding bonds while they are doing without the roads, and the inconvenience and expense to the counties and also to the general public in doing without roads already paid for, we are not sure that the bid of $444,776.50 in 12 months is a better bargain to the public than the one for $483,617.03 in four months. And we cannot sustain the contention that the convenience of the public is immaterial. The public highways are built and maintained by the public and for the public, and when the public by paying automobile and gasoline taxes has contributed the money to build a road — in other words, when it has already paid for a road — it is entitled to have that road as soon as it can be built consistent with good business principles; hence the convenience of the public is a material matter and time of completion becomes an essential element in the matter, and the Legislature has provided accordingly. So if it were true that more bids could be obtained by disregarding the element of time and allowing each bidder to take his own time, then such fact should be presented to the Legislature rather than to the courts. Both the existing conditions and the Legislature have made time an essential element and the courts are not authorized to change the law.

While the bid in this case has been accepted as the lowest responsible bid, still no contract has been entered into, no work has been done nor material furnished for which the state should be obligated to pay, as was true in the Flynn Case, supra. No substantial detriment can result from a readvertisement for bids in conformity with the statutes. The judgment is therefore affirmed.

BRANSON, C. J., and MASON, CLARK, and RILEY, JJ., concur. HUNT and HEFNER, JJ., dissent.